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 of 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

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

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

3. 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.

4. 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.

5. 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.

6. 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.

7. 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.

IT IS NOTED IN CONNECTION WITH THESE ORDERS that the judgment of the Full Court delivered this day will for all publication and reporting purposes be referred to as Sankil & Sankil.

FAMILY COURT OF AUSTRALIA AT SYDNEY

Appeal Number: SYF 2504 of 2005
File Number: EA 110 of 2005; EA142 of 2005

Mr Sankil

Appellant

And

Ms Sankil

Respondent

REASONS FOR JUDGMENT

1. These are two appeals by the husband, Mr Sankil:

   ·the first appeal is against an order made by Steele J on 26 August 2005 permanently staying both an application filed on behalf of the husband in the Family Court of Australia for divorce and also an application filed on his behalf in that court for orders concerning the children of his marriage to the wife, Ms Sankil, for orders for property settlement, and for an injunction to restrain the wife from bringing further proceedings concerning the children in the courts of India;

   ·the second appeal is against an order also made by Steele J on 9 November 2005 requiring the husband to pay the wife’s costs of the proceedings in which the order for the permanent stay was made.

2. The hearing of these appeals proceeded before us on the basis that to the extent that the appeal against the order of 26 August 2005 might require leave, we would grant leave given the significance of the issues raised.

3. The respondent wife did not appear either personally or by legal representative at the hearing of the appeals. However her position will be best explained after reference to the factual background to this case (including the proceedings before Steele J).

Factual background

1. The factual background to this case as found by Steele J in his reasons for judgment in relation to the orders of 26 August 2005, can be summarised as follows.

2. Both parties were born in India, the husband in 1955 and the wife in 1962.

3. The husband left India for Sweden in January 1987 with the intention of residing there permanently. The wife joined him there in November 1989 after they had married in India in June 1989.

4. Their first child, a daughter, N, who has Down Syndrome, was born in Sweden in September 1993.

5. Both parties and their daughter became Swedish citizens during 1997.

6. From June 1997 to June 1999 the husband, accompanied by the wife and daughter, worked in India for a Swedish company.

7. In June 1999 the husband moved to Australia to work for the same Swedish company, initially for a four year period. Again the wife and child accompanied him.

8. While the family was in Australia the parties’ second child, a son, S, was born in February 2001. S is also apparently a Swedish citizen because both his parents were Swedish citizens at the time of his birth.

9. After only two years the husband’s employment in Australia was terminated in July 2001. The husband’s visa did not permit him to stay in Australia after his employment terminated, and thus the family returned to Sweden on 15 January 2002.

10. The husband returned to a position in Australia in December 2002 travelling via India. The wife and children remained in India until February 2003 when they joined the husband in Australia.

11. At the end of 2003 the family returned to India to visit their families. On 15 January 2004 the husband returned to Australia expecting the wife and children to follow.

12. However a week or so later, on or about 23 January 2004, the wife informed the husband that she and the children would not be returning to Australia. They have not done so and have remained in India ever since.

13. The husband returned to India in February 2004 and then returned to Australia on 9 March 2004. On 18 March 2004 he returned to India where he, too, has remained ever since. On the husband’s return to India, the daughter, N, was handed over to him and continued to reside with him (at least until the time of the hearing before Steele J), while the son, S, continued to reside with the wife.

14. On 5 April 2004 the wife commenced proceedings in India under s 10 of the Hindu Marriage Act 1955 for judicial separation and proceedings for custody of the children and property (or maintenance) orders. On the same day the wife obtained an ex parte order restraining the husband from removing the child, N, from India.

15. On 5 May 2004 the husband commenced proceedings in India for orders relating to the children’s passports and visas, and on 7 May 2004 orders were made relating to the children’s passports.

16. On 28 May 2004 the husband filed an Application in the High Court of Karnataka for orders inter alia permitting him to take N to Australia.   This Application was dismissed on 3 February 2005.   The husband subsequently appealed a number of decisions, and ultimately filed a Special Leave Petition with the Supreme Court of India on 11 May 2005 (apparently directed to the question of the jurisdiction of the Indian courts in relation to the parties and their children). That Petition remained to be determined (at the time of Steele J’s orders).

17. On 2 June 2004 orders were made by the Family Court in India restraining the husband from taking N out of India, and ordering that if the husband left India, he was to return N to the wife.

18. On 11 March 2005, and notwithstanding that he was not in Australia, the husband through solicitors filed three applications in the Family Court of Australia.

19. The first such application was an application for divorce.

20. The other two applications were an application seeking final orders and an application in a case. Both of these applications sought certain identical orders, being essentially that the wife cause both children to be returned to Australia; that the children reside with the husband and have contact with the wife; and that the wife be restrained from bringing any further proceedings against the husband in respect of the children in any Indian Court. In addition the application for final orders sought orders for property settlement.

21. On 4 July 2005 the wife, through solicitors, filed a response objecting to jurisdiction in respect of the husband’s application for divorce, and also a response to an application in a case in which she sought a declaration that proceedings in relation to the children could not be instituted under the Family Law Act 1975 (“the Act”), and/ or that the husband’s application filed on 11 March 2005 be dismissed, or alternatively that that application be permanently stayed.

22. On 8 July 2005 the wife filed a response to the husband’s application for final orders seeking the same orders as sought in her response to the husband’s application in a case.

The proceedings before and orders of steele j

1. The husband’s applications (filed on 11 March 2005) and the wife’s applications (filed on 4 and 8 July 2005) were heard by Steele J on 18 and 19 July 2005.

2. At that hearing neither party was present, but each was represented by counsel, and was cross examined “to a limited extent”, according to his Honour, by telephone.

3. On 26 August 2005, his Honour delivered his reasons for judgment. It is sufficient at this point to say only that his Honour concluded in those reasons:

   35.…I have formed the view that Australia is a clearly inappropriate forum for the bringing of proceedings by the Husband and accordingly I propose to Order that the two Applications filed by the Husband on 11^th March 2005 be permanently Stayed.   It is my view that it would be seriously and unfairly burdensome and productive of serious and unjustified trouble and harassment to require the Wife and Children to be present in Australia for the purpose of proceedings here, especially in circumstances where the Wife has available to her no income and no assets of significance.  On the basis of the Orders made by the Indian Courts so far, the Children are unlikely to be able to come to Australia unless those Orders are reversed.

4. His Honour’s order therefore was that “the Husband’s two Applications filed 11^th March 2005 be Permanently Stayed”.

5. Although as we earlier said, three applications were filed on behalf of the husband on 11 March 2005, it can be assumed that the “two applications” which were permanently stayed were the application for divorce and the application for final orders in relation to the children and other matters.

6. Subsequently on 9 November 2005, his Honour heard and granted an application by the wife that the husband pay her costs of the proceedings heard on 18 and 19 July 2005.

7. As explained at the outset of these reasons, the orders which the husband now appeals are his Honour’s order of 26 August 2005 permanently staying the husband’s applications, and his Honour’s costs order of 9 November 2005.

8. These appeals were initiated by notices of appeal filed on behalf of the husband on 21 September 2005 and 6 December 2005 respectively. Amended notices of appeal were filed on 3 February 2006.

The respondent wife’s position in relation to these appeals

1. On 9 March 2006 the solicitors who had acted for the wife in the proceedings before Steele J, filed a notice of ceasing to act.

2. By a letter dated 30 August 2006 the Appeal Registrar advised the respondent wife at an address in India, that the husband’s appeals were to be heard by the Full Court on 6 November 2006.

3. The wife responded to the Registrar by a letter dated 10 October 2006 referring to the Registrar’s letter of 30 August 2006, and saying, inter alia, that she was “unable to attend the proceedings fixed for hearing on November 6, 2006 as [she did] not have the financial means to engage any solicitor or counsel, nor [was she] in a position to attend in person.”

4. In her letter to the Registrar of 10 October 2006 the wife also stated:

   I would also like the Court to be made aware of the progress in the Family Court Proceedings here in India:

   (i)Interim custody of both the children was granted to me by an order of the Family Court in Mumbai on September 23, 2005.

   (ii)The child, [N], who was taken away from me by the Husband in February 2004, has been returned to me on January 12, 2006, and has since been living with me. Both the children are schooling here in Mumbai, and Husband has regular access granted by the Court.

   (iii)Even after [N] was given into my custody, the Husband continues to live and work in Bangalore in India, and has not returned to Australia. He has continuously lived here in India since March 2004.

   (iv)My petition in the Family Court in Mumbai, India, for Divorce, Custody and Maintenance and costs is currently under final hearing.

5. At the commencement of the hearing of the appeal we were also provided by Senior Counsel for the appellant husband with a copy of a letter which the husband’s solicitors had written to the wife on 19 October 2006 advising of the hearing date for the appeal and providing her with a copy of the written outline of the appellant’s submissions.

6. All three letters just mentioned became exhibits before us (without objection).

The appeal against the permanent stay of the husband’s applications

(i) The law as applied by the trial Judge

1. It may assist in understanding the issues raised by the appeal against the permanent stay of the husband’s Australian proceedings if we first set out the law which Steele J understood he had to apply. No challenge was raised on the appeal to his Honour’s understanding of the applicable law. Rather the challenges were to his Honour’s application of that law, and to matters of fact and weight.

2. Having first provided a detailed history of the case, his Honour explained in relation to “the law to be applied” to the husband’s applications that (emphasis added):

   16.… The jurisdiction for which the Husband contends to deal with the Dissolution of Marriage proceedings derives from Section 39(3)(b) and (c) of the Family Law Act. Those subsections provide for the Family Court to have jurisdiction in the event that the Husband was “ordinarily resident” in Australia and had been so resident for one year immediately preceding the filing date (11^th March 2005) or alternatively was at that time “domiciled” in Australia.  

   Section 39(4)(a) provides for the Family Court to have jurisdiction in the property proceedings in the event that the Husband was ordinarily resident in Australia at the “relevant date”.   Section 39(4)(A) provides that the relevant date is the date of institution of the proceedings, in this case 11^th March 2005.  It is clear the husband was not present in Australia at that time.

   17.The basis of the jurisdiction in relation to the parenting orders sought by the Husband is to be found in Sections 65C and 69C of the Family Law Act which provides for a parent of the Child to institute proceedings. Coupled with Section 69E which so far as is relevant to the circumstances of this case provides that proceedings may be instituted if the Child was “ordinarily resident” in Australia at the time that proceedings were commenced, or a parent of the Child was “ordinarily resident” in Australia at the time proceedings were commenced. …

3. Having observed that the resolution of issues relating to whether the husband was “ordinarily resident” in Australia at the time the proceedings commenced or was “domiciled” here at that time “may not be without difficulty”, his Honour can be seen as then moving to a consideration of the wife’s application for a permanent stay of the husband’s applications when he said:

   18.However, if it be established or even assumed that the Father was “ordinarily resident” or “domiciled” in Australia at the time proceedings were commenced and that this Court has jurisdiction then nonetheless, a Stay should be granted if it be established that Australia is a clearly inappropriate forum in which to have determined the issues raised by the Husband’s two Applications – See  Voth v Manildra Flour Mills (1990) 170 CLR 538 and also Henry v Henry 185 CLR 571.   

4. In the event his Honour did not determine the issues of whether the husband was “ordinarily resident” or “domiciled” in Australia, apparently because he granted the permanent stay on the basis of an assumption (made for purposes of determining the stay application) that these preconditions for the exercise of jurisdiction under the Act were fulfilled.

5. His Honour next set out certain passages from the decision of the High Court majority in Henry (at 588.9, 590.5, 591.1 and 592.5), before summarising (in paragraph 20 of his reasons) what he considered to be the considerations which the High Court majority held to be “relevant to a stay of proceedings between husband and wife with respect to their marital relationship”, in the following terms:

   (i)       Whether the courts of the competing forums have jurisdiction.

   (ii)Whether the Orders of each Court will be recognised in the respective countries.

   (iii)The order in which the proceedings were commenced and the stage they have reached.

   (iv)     The connection of the parties with each jurisdiction.

   (v)The extent to which the parties are able to participate in the proceedings on an equal footing.

(ii) The trial Judge’s reasons for the permanent stay of the husband’s various applications

1. Later in his reasons after having referred at some length to the evidence of each party, his Honour made findings in relation to each of the five considerations which he had identified from the majority judgment in Henry. Again it may assist in understanding the issues raised in this appeal, if we now set out those findings:

   34.…

   (i) Whether the courts of the competing forums have jurisdiction

   Whilst the Husband has made no concessions in relation to jurisdiction at all I think it is not seriously in dispute that the Indian courts have jurisdiction in relation to the Judicial Seperation [sic] and/or Divorce Proceedings pursuant to the Hindu Marriage Act 1955. It is also clear I think, that any decree of separation or divorce pronounced by the Indian Courts would be recognized in Australia pursuant to Section 104(3) (c) of the Family Law Act. For the purposes of argument I have assumed that the Husband was at the relevant time “ordinarily resident” in Australia and “domiciled” in Australia so that this Court would have jurisdiction. This court also, would have jurisdiction to entertain the Divorce Application.

   As I have indicated the Husband has made no concession about the jurisdiction of the Indian Courts.    It is clear however, that the Indian Courts have repeatedly asserted jurisdiction in relation to the Children and made Orders in relation to them, although the Husband’s rights of Appeal have not yet been exhausted.  The Hindu Marriage Act makes provision for Orders in relation to property, but there is little material before me relating to the matter of jurisdiction in India.   The Husband has himself taken proceedings in India relating to parenting matters.

   (ii) Whether the orders of each court will be recognized in the respective countries.

   Section 70G of the Family Law Act provides for the making of Regulations relating to the registration of overseas Child Orders and Section 70H provides that once registered overseas orders have the same force and effect as if made by this court. Overseas Child Orders are defined by Section 70F as being orders of a prescribed overseas jurisdiction. The various prescribed jurisdictions are set out in Schedule 1A to the Regulations and do not include India. The only prescribed jurisdictions are the States of U.S.A. (except for four in number), Austria, New Zealand, Papua New Guinea and Switzerland. The court may however, receive evidence of Foreign Orders pursuant to Regulation 23 (8). Section 110(2) of the Family Law Act authorizes the recognition and enforcement of Maintenance Orders made in India - See Regulation 25 Schedule 2.

   The Husband has filed an Affidavit by an Indian lawyer which purports to set out the Indian law.   In effect however, it merely recites some provisions of the legislation but does not express any expert views about the circumstances of this case.   It seems that portions of the Code of Civil Procedure of India, and in particular Sections 13 and 14 thereof provide for a foreign judgment to be conclusive except in certain circumstances which are therein set out.   Those circumstances include a refusal to recognize the law of India.   It seems in those circumstances that if the Indian courts have found and continue to find that they have jurisdiction then the various exceptions contained in Section 13 of the Code of Civil Procedure may well come into play.   The real difficulty in this case is there is no real expert evidence as to what the situation is and little attention appears to have been addressed to those issues.   The reality is that the Children are in India and the Courts of India have already repeatedly made Orders in relation to them.   It seems unlikely in those circumstances that any Order made by Australian Courts in relation to the Children now in India and the subject of numerous proceedings in India are likely to be given much credence by the Indian Courts.

   (iii)The order in which the proceedings were commenced, the stage they have reached and the costs they have incurred

   The Wife commenced proceedings in India in April 2004.   The Husband commenced proceedings in India in early May 2004, but did not commence the proceedings in Australia until March 2005, nearly twelve months later.  It is true that so far as proceedings for divorce are concerned he could not commence them until the parties had been separated for a period in excess of one year, however that limitation did not apply to the Children or the property proceedings which he did not bring until March 2005.  

   There has been a plethora of proceedings in India and the Husband has taken a significant part in those proceedings.  The Husband has embraced the Indian jurisdiction on a number of occasions including the mounting of a number of appeals.   The Wife on the other hand has not sought to be involved in the Australian proceedings, except to object to jurisdiction and to bring the Stay Application now being considered.

   The Husband is said to have funds in Australia   The Wife said she had no funds it would appear [sic] (though there is no direct evidence of it) that each of the parties has committed funds to the Indian proceedings

   (iv)The connection of the parties and the marriage with each jurisdiction

   Each of the parties was born in India.   They have lived for most of their life in India.   They were married in India.   Since marriage they have spent the majority of their time in Sweden of which they are citizens as are their Children.   They are presently in India and have been there continuously since early 2004.   They lived in Australia between June 1991 [sic] and December 2001 and again from the beginning of 2003 until the end of 2003.   Although the parties are Swedish citizens and the Husband is for the purposes of this argument presumed [sic] be a “resident of” and “domiciled” in Australia, nonetheless the overwhelming connection of the parties seems to me to still be India.

   (v) The extent to which the parties are able to proceed, participate in the proceedings on an equal footing having regard to the resources of the parties and their understanding of the language

   The evidence is that the Wife has no money and no income.   The Husband is in receipt of a salary in India and has bank accounts in Australia.   There is no evidence of real property or other assets of which I am aware in Australia which would make it peculiarly convenient for property orders to be made in Australia, though it may be that the Wife may have some difficulties in enforcing property orders in Australia. No doubt however, if money orders are made then they can be enforced against the Husband personally in India

   Each of the parties speaks English well and they each have the language of the country of their birth.   No particular advantage one way or the other derives from that, but the fact that the Wife and Children are in India and that Orders involving the Children’s well being are involved it seems that an understanding of those issues will better be dealt with by the courts of India.

   The cost of the Wife and Children moving to Australia and finding accommodation here to enable the proceedings to be heard here would be significant indeed.   The evidence suggests the Wife would not have the funds to do so.

2. In light of these findings his Honour concluded in the final paragraph of his reasons, which it will be convenient to here repeat, that Australia was a clearly inappropriate forum for the proceedings which the husband had initiated, and thus he granted the permanent stay of all of the husband’s applications:

   35.Having regard to these various matters I have formed the view that Australia is a clearly inappropriate forum for the bringing of proceedings by the Husband and accordingly I propose to Order that the two Applications filed by the Husband on 11^th March 2005 be permanently Stayed.   It is my view that it would be seriously and unfairly burdensome and productive of serious and unjustified trouble and harassment to require the Wife and Children to be present in Australia for the purpose of proceedings here, especially in circumstances where the Wife has available to her no income and no assets of significance.  On the basis of the Orders made by the Indian Courts so far, the Children are unlikely to be able to come to Australia unless those Orders are reversed.

3. We mention at this point that Ground 7A of the husband’s amended notice of appeal can be read as containing some criticism of his Honour’s identification of the considerations which the High Court majority in Henry considered to be “relevant to a stay of proceedings between husband and wife with respect to their marital relationship”. Ground 7A is in the following terms:

   7A.The Trial Judge erred in not properly applying the principles laid down in the High Court in Henry v Henry (1996) FLC 92-685 and applied in the Full Court of this court in Dobson v Londen (2005) FLC 93-225. In particular:

   (a)Whether the courts of both countries have jurisdiction (see Ground 4);

   (b)Whether orders made in India would be recognised in Australia;

   (c)Which forum could provide more effectively for the complete resolution of matters involved in the parties’ controversy;

   (d)What issues will relief depend upon in the respective jurisdictions; and

   (e)Whether, although not a matter raised in Henry, this court should as a matter of public policy prima facie exercise jurisdiction in circumstances such as the circumstances of this case where it was common ground that the parties’ children had been wrongfully retained in India.

4. We will later discuss in some depth the matters raised in sub-paragraphs (a) and (e) of Ground 7A. To the extent that the remaining sub-paragraphs can be read as suggesting that there were some matters identified by the High Court in Henry which his Honour did not identify, we think it necessary to set out in full the relevant passage from the High Court majority judgment (at 592 – 593):

   Considerations relevant to a stay of proceedings between husband and wife with respect to their marital relationship

   Some of the matters properly to be taken into account in a case such as the present emerge from what has already been written. To start with, no question arises unless the courts of the respective countries have jurisdiction with respect to the parties and their marriage. And if there is a question as to the jurisdiction of the foreign court, it may be necessary to adjourn the local proceedings to enable the foreign court to determine that question. However, if both have jurisdiction, it will be relevant to consider whether each will recognise the other’s orders and decrees. If the orders of the foreign court will not be recognised in Australia, that will ordinarily dispose of any suggestion that the local proceedings should not continue. However, if the orders of the foreign court will be recognised in Australia, it will be relevant to consider whether any orders may need to be enforced in other countries and, if so, the relative ease with which that can be done. [Note, however, the statement in the majority judgment in Voth v Manildra Flour Mills Pty Ltd (1990) 171 CLR 538 at 558, to the effect that Australian courts should not concern themselves with “an assessment of the comparative procedural or other claims of the foreign forum”.] As well, it will be relevant to consider which forum can provide more effectively for complete resolution of the matters involved in the parties’ controversy.

   Other considerations include the order in which the proceedings were instituted, the stage which they have reached and the costs that have been incurred. It will also be relevant to consider the connection of the parties and their marriage with each of the jurisdictions and to have regard to the issues on which relief might depend in those jurisdictions. Moreover, it will be relevant to consider whether, having regard to their resources and their understanding of language, the parties are able to participate in the respective proceedings on an equal footing. The list is not exhaustive. Rather, 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.

5. We draw attention particularly to the last two sentences of that passage where it is explained that the list provided was not exhaustive and that the question of whether Australia is a clearly inappropriate forum depends of the general circumstances of the case. We are satisfied that in the present case Steele J adequately identified the five principal matters to be considered in determining the present case. However whether the findings which he made in respect of all of those matters adequately supported his conclusion that the husband’s application should be permanently stayed is a different matter.

(iii) The focus of the appeal against the permanent stay

1. In considering the appeal against the permanent stay of the husband’s applications, it needs to be remembered that the husband’s applications fell into the following four separate categories: divorce; orders concerning the children; property settlement orders; and an injunction to restrain the wife from bringing any further proceedings in the Indian courts in respect of the children.

2. In his reasons for judgment Steele J made no reference to the husband’s application for the injunction against the wife in relation to proceedings in India. No complaint was pursued before us in relation to this matter. Accordingly, it is not a matter which we need consider.

3. In relation to the husband’s application for property settlement orders, it will be recalled that in paragraph 16 of his reasons his Honour referred to the jurisdictional requirements for the institution of property settlement proceedings under the Act saying:

   16.… Section 39(4)(a) provides for the Family Court to have jurisdiction in the property proceedings in the event that the Husband was ordinarily resident in Australia at the “relevant date”.   Section 39(4)(A) provides that the relevant date is the date of institution of the proceedings, in this case 11^th March 2005.   It is clear the Husband was not present in Australia at that time.

4. Before us no point was taken regarding his Honour’s comments in paragraph 16 concerning the property settlement proceedings. Nor did we understand any of the grounds of appeal which were ultimately pursued, or any submission made, to be directed specifically to the permanent stay of the property settlement proceedings, although Ground 2, which attacks his Honour’s failure to find that the husband was resident in Australia at all material times, might be read as applying to the application for property settlement orders. We note in this context that Grounds 5.4 and 6 as contained in the amended notice of appeal which did raise matters relevant to the property settlement application were not pursued.

5. But whatever the appellant’s position in relation to the stay of the property settlement application, the real focus of his appeal against the permanent stay was on his applications for divorce and for orders relating to the children. Accordingly, we turn now to the grounds of appeal directed to those matters.

(iv) The alleged wrongful retention of the children in India

1. A number of the husband’s grounds of appeal raise as an issue the wife’s retention of the children in India against the husband’s wishes, with those grounds asserting that his Honour:

   3.…erred in failing to find that it was incumbent upon the court to exercise jurisdiction having regard to the acknowledged fact that the wife had commenced proceedings in India in circumstances where she had wrongly retained the children in that jurisdiction.

   7A.…erred in not properly applying the principles laid down in the High Court in Henry v Henry (1996) FLC 92-685 and applied in the Full Court of this court in Dobson v Londen (2005) FLC 93-225. In particular:  

   …

   (e)  Whether, although not a matter raised in Henry, this court should as a matter of public policy prima facie exercise jurisdiction in circumstances such as the circumstances of this case where it was common ground that the parties’ children had been wrongfully retained in India.

   7.…in determining that Australia was a clearly inappropriate forum, … failed to place any or any sufficient weight upon the facts that:

   §The parties had left Australia to holiday holding return tickets;

   §That the children had been wrongfully retained by the wife in India; …

2. It emerged from the written submissions of Senior Counsel for the husband that Ground 5 was also principally directed to the alleged wrongful retention issue, and while no oral submissions were directed to this ground, we set it out here for the sake of completeness:

   5.That the trial judge placed insufficient or no weight upon the fact that the wife:         

   5.1Failed to lead any evidence to support the proposition that either she or the parties’ children were domiciled in India at the date she commenced proceedings;

   5.2Failed to lead any evidence that the parties and the children, having overstayed the visitors’ visas, had any right to remain in India irrespective of any Indian court’s determination while they were present in that country;

   5.3Failed to lead any evidence as to the basis upon which the courts in India would determine the issue of the parties’ children’s residence for the purpose of enabling the court to determine whether any order made in that jurisdiction would or might be recognised within Australia, the country of the children’s residence;

   5.4[Not pursued].

3. Notwithstanding the assertion in Ground 7A(e) that “it was common ground that the parties’ children had been wrongfully retained in India”, it is not clear to us that it was indeed “common ground” that the retention of the children in India was “wrongful”. We say this having regard to his Honour’s use of the expression “alleged wrongful retention” in the following observations made by him at the commencement of his discussion of the law, which he understood that he had to apply:

   15.It is common ground that India is not a signatory to [the] Hague Convention so that the provisions of the convention do not apply and issues which might arise relating to the alleged wrongful retention of the Children in India do not arise in that context.

4. We observe in passing that given the grounds of appeal which raise the issue of the alleged wrongful retention of the children in India, it can be assumed that “the common ground” before his Honour was only that the Hague Convention on the Civil Aspects of International Child Abduction did not apply, and that it was not common ground that issues which might arise relating to a “wrongful retention” in the context of the Convention did not arise in this case.

5. But whatever matters may or may not have been common ground before his Honour, the essential argument raised before us in this context was that where there has been a wrongful retention of a child in a foreign country, the onus of establishing that the jurisdiction from which the child in question has been removed, or from which the child is being wrongfully retained, is a clearly inappropriate forum, must be extremely high; and thus the alleged wrongful retention of the children was an additional consideration to which Steele J should have had regard (that is, apparently, an additional consideration to the five considerations which his Honour extracted from the High Court majority in Henry).

6. At least as presently advised, we are not persuaded that when considering whether an Australian court is a clearly inappropriate forum for the determination of proceedings concerning a child, who although the subject of the court’s jurisdiction under s 69E of the Act, has been taken to, or is retained in, a foreign country, it is necessary for the court to consider as an additional matter the circumstances in which the child came to be in the foreign country, that is, as an additional matter to the matters referred to by the High Court majority in Henry and identified as relevant by the trial Judge in the present case.

1. In our opinion, the circumstances surrounding the removal or retention are in any event likely to be considered within any consideration of the principles enunciated in Henry. This can be demonstrated in the present case by the fact, to which Steele J clearly had regard, that the children are in India, and the Indian courts have already assumed jurisdiction in relation to them (albeit subject to appeal as we will later discuss). But the reality must be that any order for the return of the children to Australia will have to be made, or at least enforced, by an Indian court.

2. This reality was recognised by Steele J when he said, when considering the second consideration which he identified from the decision in Henry, being whether the orders of each court will be recognised in the respective countries:

   The reality is that the Children are in India and the Courts of India have already repeatedly made Orders in relation to them.   It seems unlikely in those circumstances that any Order made by Australian Courts in relation to the Children now in India and the subject of numerous proceedings in India are likely to be given much credence by the Indian Courts.

3. This passage from his Honour’s judgment was the subject of some criticism before us by Senior Counsel for the husband. However we consider this statement by his Honour to be correct, although we would add the qualification that it must be remembered that there were appellate proceedings in the Supreme Court of India, which were concerned with the issue of jurisdiction in the Indian courts, and to which we will later refer.

4. Thus, we find no substance in the various grounds of appeal which seek to establish error on the part of Steele J because of his failure to take into account of, or place sufficient weight on, the circumstances surrounding the children’s retention in India. As we have said, the reality was that the children were in India, and if they were to be able to leave India, that would require the acquiescence of the Indian courts.

(v) The husband’s position in relation to the jurisdiction of the Indian courts

1. One of the principal challenges raised by the husband before us was to his Honour’s findings regarding the jurisdiction of the courts in India in relation to the parties’ proceedings and to the husband’s attitude to that jurisdiction. That challenge was contained in Ground 4 which asserts that his Honour:

   …wrongly found that the husband had adopted the jurisdiction of the courts in India where his primary applications were at all material times that that court had no jurisdiction as the parties were not domiciled in India.

2. A similar challenge was contained in Ground 7A(a) which asserts:

   7A.The Trial Judge erred in not properly applying the principles laid down in the High Court in Henry v Henry (1996) FLC 92-685 and applied in the Full Court of this court in Dobson v Londen (2005) FLC 93-225. In particular:

   (a)Whether the courts of both countries have jurisdiction (see Ground 4) …

3. At an early stage in his reasons his Honour clearly recognised that the husband did not concede that the Indian courts had jurisdiction to deal with the matters in dispute between the parties when he said (emphasis added):

   19.The Wife has commenced proceedings in the courts of India and the Husband has taken an active part in the litigation there.   There have been a series of appeals instituted by each of the parties.  The Husband through his counsel does not concede that the Indian Court does have jurisdiction to deal with the various matters in dispute. 

4. Later when discussing and making findings in relation to the first of the matters to be considered under the principles in Henry, being “whether the courts of the competing forums have jurisdiction”, his Honour appears to have continued to recognise that the husband did not concede the jurisdiction of the Indian courts. But his Honour then appears to have accepted that that jurisdiction existed, both in relation to the divorce and to the children’s matters, when he said (emphasis added):

   34.      …

   (i) …Whilst the Husband has made no concessions in relation to jurisdiction at all I think it is not seriously in dispute that the Indian courts have jurisdiction in relation to the Judicial Separation and/or Divorce Proceedings pursuant to the Hindu Marriage Act 1955. It is also clear I think, that any decree of separation or divorce pronounced by the Indian Courts would be recognized in Australia pursuant to Section 104(3) (c) of the Family Law Act. For the purposes of argument I have assumed that the Husband was at the relevant time “ordinarily resident” in Australia and “domiciled” in Australia so that this Court would have jurisdiction. This court also, would have jurisdiction to entertain the Divorce Application.

   As I have indicated the Husband has made no concession about the jurisdiction of the Indian Courts.    It is clear however, that the Indian Courts have repeatedly asserted jurisdiction in relation to the Children and made Orders in relation to them, although the Husband’s rights of Appeal have not yet been exhausted.  The Hindu Marriage Act makes provision for Orders in relation to property, but there is little material before me relating to the matter of jurisdiction in India.   The Husband has himself taken proceedings in India relating to parenting matters.

5. 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 Separation

   1.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 23^rd 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 11^th 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. 5^th April 2004 and 2^nd June 2004 continue to operate against [the husband].

   11.On 29^th 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 11^th 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 10^th 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.

6. We agree with Senior Counsel for the husband that this evidence from the husband’s Indian lawyer indicates that the husband was challenging the jurisdiction of the Indian courts in relation to the grant of a judicial separation and divorce and also, it would seem, in relation to the custody and maintenance proceedings (on the basis of the grounds set out in paragraph 4 of the above quoted passage from the lawyer’s affidavit) and that that challenge remained to be determined by the Supreme Court of India as at the time of the proceedings before Steele J.

7. We were not provided with any updating information concerning the proceedings in relation to jurisdiction in the Supreme Court of India. It is interesting to note that those proceedings are not specifically referred to by the wife in her letter – although it might perhaps be assumed that if the Family Court in Mumbai was proceeding in October 2006 (which was some 15 months after the affidavit of the husband’s Indian lawyer was prepared and filed) to a final hearing in relation to divorce and custody, that the issue of jurisdiction in the Indian courts had been resolved in favour of those courts at the highest level.

8. Nevertheless, we are satisfied that his Honour was in error in concluding that it was “not seriously in dispute that the Indian courts have jurisdiction in relation to the Judicial Separation and/ or Divorce Proceedings”. This was, in our view, an error of some materiality and significance in that were it to transpire that the Indian courts did not have jurisdiction in relation to the parties’ divorce, the husband would, if the permanent stay had been granted, and provided he could establish an Australian domicile, be prevented from obtaining a divorce in Australia.

9. We explain at this point that it would be necessary for the husband to establish an Australian domicile for the purposes of s 39(3) of the Act because even if he could establish that he was “ordinarily resident” in Australia, he would not be able to establish that he had been so resident for one year immediately preceding the filing date (11 March 2005) of his application for divorce. Nor could he rely on Australian citizenship.

10. Also relevant to the issue of the permanent stay of the husband’s application for a divorce under Australian law is Ground 8, by which it is asserted that his Honour:

    …erred in permanently staying the husband’s application for dissolution of marriage when there was no application for dissolution of marriage lodged by the wife in India nor any reason or basis laid by her to establish why she was prejudiced by that matter continuing in this jurisdiction.

11. Again we consider that there is some force in this ground, although its technical success may be of little assistance to the husband given that by the time the appeal was heard, the wife had, according to her letter of 10 October 2006, commenced divorce proceedings in India. This would be a matter which could be the subject of evidence in proper form should there be a reconsideration of the matter by ourselves, or a court at first instance, should we conclude that his Honour had fallen into appealable error. Furthermore it would seem that proceedings for judicial separation which the wife had instituted are a precondition to proceedings for a divorce in India.

12. Returning to Ground 4 and to the issue of the husband’s challenge to the jurisdiction of the Indian courts in relation to the proceedings concerning the children, while we find it hard to accept that the courts of India would not be prepared to assume jurisdiction over children within that country, nevertheless it seems clear from the affidavit of the Indian lawyer that the jurisdiction of the Indian courts concerning the children was also an issue to be determined by the Indian Supreme Court. Indeed this was recognised by his Honour in the final paragraph of the passage from his reasons quoted in paragraph 28 above. We are thus compelled to conclude that it amounted to an appealable error for his Honour to have determined that he should permanently stay the Australian parenting proceedings without a final determination in India as to whether the courts of that country had jurisdiction over these parties and their children.

13. Before discussing further the course which this appeal should take given our conclusion that his Honour erred in relation to the important question of the jurisdiction of the Indian courts, we will consider the remaining grounds of appeal.

(vi) The remaining grounds of appeal

1. We have already discussed Grounds 3, 4, 5.1 – 5.3, 7A(a) and (e), 7 (in part) and 8. As earlier mentioned, Grounds 5.4 and 6 were not pursued.

2. Ground One as argued by Senior Counsel for the husband was directed to the following adverse credit findings made by Steele J against the husband:

   28.The Husband initially said during cross examination that he was presently receiving his salary, by monthly payments into his bank account with Westpac Bank at 60 Martin Place Sydney.   He said he was presently employed by the same employer who paid his salary into that account.   When pressed about this it became apparent that the Husband was now being paid by a company which, whilst one of the […] group, was a different company to the one which operates the Sydney business and payments were being made to him in Bangalore at a rate which was vastly different to that at which he was previously employed in Sydney.   He agreed that although he contends he is an Australian resident he has not paid Australian tax since he recommenced work with the company in Bangalore after returning from his leave of absence in August 2004.   My view, is that the Husband was less than honest in giving his evidence about these matters.  

   …

   32.The Wife’s principal contention is that after the Family underwent medical checks in November 2003, the Husband said things to her which indicated that he recognized that their ambition to obtain permanent residence would be a hopeless task having regard to [N’s] problems.   She says that in the light of that information the Husband set out in December 2003 to go to Florida, then to the United Kingdom and then on to India where they would all meet.   She says the Husband told her he was going to look for employment in the United Kingdom or have an interview for employment.   The Husband denies that.   These matters of course go to the issues of residence and domicile.   The Wife contends and the Husband agrees that in February 2004 after she had refused to return with the Children to Australia, the Husband in an attempt to save the marriage offered to come back to India to live or to go to the United Kingdom.   Whilst it was not put to the Husband in those terms counsel for the Wife contends that the reason the Husband offered to go to India or the United Kingdom was that Australia was not a feasible option having regard to [N’s] condition and he knew that.   I have found it very difficult to determine factual matters having regard to the very limited nature of the cross examination and the way it was conducted.   In particular I formed a negative view of the Husband’s credit in relation to his evidence initially given that he was being paid on a monthly basis to a bank account in Sydney, when, as it emerged he is actually being paid in Bangalore.   The false version of events given firstly by him is unlikely to have been given simply by mistake.   Nonetheless, there is little other objective evidence which would support the Wife’s version of events.   I have been unable in those circumstances to form any firm view about those events.

3. By Ground One it was asserted that:

   1.The trial judge erred in finding as a fact that the husband was “… less than honest in giving his evidence about these matters.”, being matters pertaining to his employment when the matters about which the trial judge criticised him were set out in his Financial Statement being Document 4.1.3 in the husband’s List of Documents. By reason of the trial judge’s adverse finding, his discretion did or must have otherwise miscarried.

4. It was acknowledged by Senior Counsel for the husband that his Honour’s finding was likely to have been based on the following passage in the transcript of the cross-examination of the husband where the husband had acknowledged that some earlier evidence which he had given was wrong:

   No, …, I’ll ask you – this is I think the third time or fourth time. I want you to understand that it’s important. Did you not say some little time ago that your current income was paid to you by way of monthly salary cheques in Australia?--- I did.

   That was wrong, was it?--- That was wrong. (Transcript 18/7/05, Appeal Book p 305, lines 6 – 11).

5. Notwithstanding this admission by the husband, his counsel sought to persuade us that it was unfair to make a credit finding on the basis of answers given in a telephone link which other passages of transcript indicated was of poor quality and subject to disconnection.

6. Whatever the quality of the telephone link, the transcript reveals clearly, in our view, that the husband admitted that the evidence which he had given was wrong. His Honour was therefore entitled to make the adverse credit finding which he did, and accordingly, there is no merit in this ground.

7. Ground 7 was in the following terms:

   7. That in determining that Australia was a clearly inappropriate forum, the trial judge failed to place any or any sufficient weight upon the facts that:

   ·    The parties had left Australia to holiday holding return tickets;

   ·    That the children had been wrongfully retained by the wife in India;

   ·    That the husband had expended substantial funds (approximately $42, 000) in lost lease payments in respect of the parties’ premises in Sydney;

   ·    That the children had ongoing commitments and, for example, had been booked to commence school in Sydney in calendar year 2004;

   ·    That the parties had applied for permanent residence in Australia or in the alternate in any event, had a temporary residence visa for 4 years which on the evidence might have been extended indefinitely thereafter.

1. We have earlier referred to the first two specific matters mentioned in this ground in our discussion of the alleged wrongful retention issue.

2. The remaining three matters all relate ultimately to the ability of the parties and their children to be permitted to reside in Australia even on a temporary basis. As we understand it, the evidence about this matter was very limited and we have difficulty in seeing how it could have advanced the husband’s case.

3. By Ground 2 it was asserted that his Honour had “erred in failing to find that the husband and the parties’ children were resident and domiciled in Australia at all material times”.

4. We were informed by Senior Counsel for the husband that this ground only required consideration in the event that the appellant’s primary complaint was upheld, that being the finding that Australia was not a clearly inappropriate forum. We now return to that matter.

Conclusion and future course of the appeal

1. We have earlier concluded that his Honour erred in relation to the issue of the jurisdiction of the Indian courts. Given the uncertainty concerning that issue because of the then pending proceedings in the Indian Supreme Court, the appropriate course, in our view, would have been for his Honour to have adjourned the proceedings, or granted a temporary stay of the husband’s Australian proceedings pending the outcome of those proceedings. We draw attention in this regard to the following observations of the High Court majority in the passage from their decision in Henry earlier quoted:

   To start with, no question arises unless the courts of the respective countries have jurisdiction with respect to the parties and their marriage. And if there is a question as to the jurisdiction of the foreign court, it may be necessary to adjourn the local proceedings to enable the foreign court to determine that question.

2. However as Senior Counsel for the husband fairly conceded, his Honour was never asked to adopt such a course.

3. But as we earlier mentioned, events have, it would seem in light of the wife’s letter of 10 October 2006, moved on, and it may well be that the jurisdiction issue has now been determined in India. Should it be that the Indian Supreme Court has in fact determined that there is jurisdiction in the Indian Courts to entertain these parties’ proceedings, then we would see no reason to interfere with his Honour’s decision that Australia was a clearly inappropriate forum. Indeed, if it is conclusively established that the Indian Courts have the necessary jurisdiction, we consider that his Honour’s decision was plainly right.

4. In these circumstances, we consider that the appropriate course is to stand the appeal over for a period of three months, to permit both the husband and the wife, if she wishes, to put before us in proper form evidence as to the position now reached in India with regard to the jurisdiction issue and also to the parties’ proceedings there generally. We will make the necessary directions for this to occur.

5. Should it be that the jurisdiction question has been resolved in the wife’s favour in India, the errors in his Honour’s reasons will have been corrected by subsequent events, and there would be no point in a re-hearing of the matter. Accordingly we would then dismiss the appeal.

6. If the situation as to jurisdiction in India remains unclear, we will have to consider further what would be the most appropriate course in light of any further evidence and submissions put before us.

The appeal against the costs order

1. In his ex-tempore judgment in relation to costs delivered on 9 November 2005, Steele J provided the following reasons for ordering the husband to pay the wife’s costs on the basis of various matters contained in s.117(2A) of the Act:

   3.(a) The Financial Circumstances.  The evidence before me, untested though it is, indicates that the Wife has no income and no assets of significance.  It would appear that the Wife's father is supporting her in India.  The Husband has relied upon his financial statement filed some time ago in March this year which indicates that he has a weekly income of $1500 per week in India and that he has assets of some $390,000 plus superannuation.  It may be that those assets are in Australia and it may be that they are assets which might at some stage be the subject of orders for property settlement.  However, at the moment, as I understand it, they are assets which are under the Husband's control and in his name and assets which he is able to access for the purpose of legal proceedings. 

   The material filed by the Wife would suggest that her father, who appears to be supporting her, has an income of $900 per week.  So that even if one were to attribute to the Wife the whole of her father's income there is still a gross disparity between his income and that of the Husband.  The Husband, as I said, has control and access to significant assets.  In my view, there is a significant disparity between the financial circumstances of the Wife and the Husband and the Husband's financial circumstances are immeasurably stronger than those of the Wife. 

   …

   7.(e) It is clear that the Wife has been successful. This was very much a yes or no case. The Wife has been in the circumstances wholly successful. There are no other matters dealt with under s 117(2A) which appear to be relevant.

   8.It seems to me, however, that in all the circumstances of this case, and having regard in addition to the fact that the Husband having embraced the Courts of India brought the proceedings in Australia in which he has now been unsuccessful, that all those matters lead me to the conclusion that an order for costs on a party-party basis should be made in favour of the Wife.

2. It is unnecessary that we record all four grounds of appeal relied on by the husband in support of his appeal against the costs order. This is because we are satisfied that whatever the ultimate outcome of the appeal against the order permanently staying the husband’s Australian proceedings, this appeal against the costs order must succeed on the basis of the  error which we identified in considering that other appeal. That error was his Honour’s misapprehension that the husband had submitted to the jurisdiction of the Indian courts, and it is the subject of the husband’s second ground of appeal against the costs order.

3. It will be seen from paragraph 8 of his Honour’s reasons for the costs order, that he clearly took into account the fact that the husband had “embraced the Courts of India” in deciding to make the costs order against the husband. That was clearly a material mistake of fact, which would, in our view, fundamentally undermine the costs order.

4. We are not persuaded that the other matters which his Honour took into account in making the costs order, being the financial circumstances of the parties – the evidence concerning which was, as his Honour recognised, “untested” – and the success of the wife’s application – which may only ultimately be sustained because of subsequent events in India – would be sufficient to sustain or justify the costs order.

5. Accordingly, the appeal against the costs order will be allowed, and that order set aside.

Costs of these appeals

1. We will provide in the directions which we will make for further submissions, for submissions in relation to the costs of the appeals.

I certify that the preceding one hundred (100) paragraphs are a true copy of the reasons for judgment of the Honourable Full Court 

Associate: 

Date:  26 November 2007