Sankil & Sankil

[2008] FamCAFC 205

FAMILY COURT OF AUSTRALIA

SANKIL & SANKIL [2008] FamCAFC 205

FAMILY LAW - APPEAL – APPEAL AGAINST PERMANENT STAY – where it was found that the trial judge 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 – where parties directed to file updating evidence concerning the proceedings in the 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 – further submissions subsequently received – appeal allowed – trial Judge’s orders varied to provide for temporary stay.

Family Law Act 1975 (Cth)
Federal Proceedings (Costs) Act1981 (Cth)

Henry & Henry (1996) 185 CLR 571

APPELLANT: Mr Sankil

RESPONDENT: Ms Sankil

FILE NUMBER: SYF 2504 of 2005

APPEAL NUMBER: EA
EA 110 142 of of 2005 2005

DATE DELIVERED: 17 December 2008

PLACE DELIVERED: Canberra

JUDGMENT OF: Finn, Coleman and Boland JJ

HEARING DATE: By way of written submissions

LOWER COURT JURISDICTION: Family Court of Australia

LOWER COURT JUDGMENT DATE: 26 August 2005

LOWER COURT MNC: [2005] FamCA 822

REPRESENTATION

SOLICITOR FOR THE APPLICANT/

APPELLANT:

Fox & Staniland

SOLICITOR FOR THE RESPONDENT: Self-represented

Orders

1. That the appeal be allowed.

2. That the order made by the Honourable Justice Steele on 26 August 2005 be amended to provide that the appellant husband’s applications filed on 11 March 2005 in the Family Court of Australia be stayed pending the determination in India of the question as to whether the courts of that country have jurisdiction to determine divorce and other matrimonial proceedings between the appellant husband and the respondent wife.

3. That there be liberty to the appellant husband to apply to re-list his applications in the Family Court of Australia in the event that the courts of India determine that there is no jurisdiction to entertain divorce and/or other matrimonial proceedings between the appellant husband and the respondent wife.

4. That the Court grants to the appellant husband a costs certificate pursuant to the provisions of s 9 of the Federal Proceedings (Costs) Act 1981 being a certificate that, in the opinion of the Court, it would be appropriate for the Attorney-General to authorise a payment under that Act to the appellant husband in respect of the costs incurred by the appellant husband in relation to the appeal.

5. That the Court grants to the respondent wife a costs certificate pursuant to the provisions of s 6 of the Federal Proceedings (Costs) Act 1981 being a certificate that, in the opinion of the Court, it would be appropriate for the Attorney-General to authorise a payment under that Act to the respondent wife in respect of the costs incurred by the respondent wife in relation to the appeal.

IT IS NOTED that publication of this judgment under the pseudonym Sankil & Sankil is approved pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth).

THE FULL COURT OF THE 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

Introduction and background

1. On 26 November 2007 this Full Court made orders standing over for further consideration pending further evidence and submissions, an appeal by Mr Sankil, the husband, against an order made by Steele J on 26 August 2005 permanently staying, on the application of the respondent wife, certain applications filed by the husband in the Family Court of Australia on 11 March 2005.

2. The applications filed by the husband on 11 March 2005 and which are presently relevant were for divorce and for parenting orders in relation to the children of his marriage to the respondent wife, Ms Sankil. In his reasons for judgment delivered 26 August 2005, Steele J recorded that he had “formed the view that Australia is a clearly inappropriate forum for the bringing of proceedings by the Husband”, and that accordingly, he proposed to grant the permanent stay sought by the wife.

3. The husband’s appeal was heard by this Full Court on 6 November 2006. In the course of that hearing, it emerged that the husband had initiated proceedings in India challenging the jurisdiction of the Indian Courts to grant judicial separation and divorce and to entertain custody and maintenance proceedings as between the husband and the wife (who, although both born in India, had both become Swedish citizens). Those proceedings had been on foot in the Supreme Court of India at the time of the trial before Steele J. No updating information regarding the status of those proceedings was made available to the Full Court at the hearing of the appeal.

4. In our reasons for judgment delivered on 26 November 2007, we concluded as follows in relation to the permanent stay of the husband’s application for divorce (emphasis in original):

   72.… 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.

   73.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.

   74.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.

   75.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.

5. In relation to the permanent stay of the husband’s application for parenting orders we concluded:

   76. 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.

6. Our overall conclusion in relation to the future course of the appeal was then as follows:

   89.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 [(1996) 185 CLR 571]:

   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.

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

   91.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.

   92.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.

   93.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.

   94.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.

7. The orders then made by us on 27 November 2007 which are presently relevant were then as follows:

   (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.

Further submissions and evidence

1. On 22 February 2008 the Appeal Registrar received a letter from the wife dated 21 February 2008. We are prepared to treat that letter as the wife’s submissions filed pursuant to our orders of 26 November 2007, although it should be noted that much of the content of the wife’s letter is irrelevant to the matters yet to be determined by us.

2. In her letter the wife stated, relevantly for present purposes, that the proceedings in the Family Court in Mumbai had been completed and that a judgment and orders were awaited, “for which the date has been set as March 5, 2008”.

3. With respect to the appeals pending in the Supreme Court and in particular to the “Appeal by the Husband against the order of the High Court, Mumbai, on the issue of jurisdiction of the Courts in India”, the wife said:

   This has been admitted but no stay was granted, and the Supreme Court directed the Family Court to proceed with the matter. The said Appeal has been ordered to be clubbed with the other appeals pending in the Supreme Court.

4. The wife also said that the Supreme Court had said that all matters pending in that Court would be heard together but that this could “only happen after the Family Court, Mumbai gives its judgment and orders”.

5. On 26 February 2008 the solicitors for the husband sent a letter by facsimile to the Appeal Registry of the Family Court of Australia in Sydney stating:

   We are in a position to file our client’s affidavit as directed by the Court on 26 November 2007. However, we are instructed that there is likely to be a judgment handed down in the Indian Proceedings on 5 March, 2008 on a number of relevant matters. In the light of that we seek an extension for our client to file his Affidavit on or before 19 March 2008; in place of 1^st March 2008.

6. The husband’s solicitors also sent a copy of this letter to the wife by email on 26 February 2008.

7. On 27 February 2008 the wife responded by email to the Appeal Registry and to the solicitors for the husband saying:

   Please note that the awaited judgment to be handed to us on March 5, 2008, pertains to the matters pending in the Family Court, Mumbai, and are relating to the issues of Divorce, Custody & Maintenance. There would be no judgment on the jurisdiction issue, which is pending in the Supreme Court in India, and for which, as explained in my letter dated February 21, 2008, there is no date for hearing assigned as yet.

8. The solicitors for the husband then wrote to the Appeal Registry on 28 February 2008 (with a copy to the wife) saying that notwithstanding the content of the wife’s email of 27 February, they still wished to await the judgment anticipated to be delivered in India on 5 March 2008 before filing further submissions and evidence.

9. On 19 March 2008 the husband’s solicitor filed an affidavit from him sworn on 18 March 2008 together with submissions from senior counsel who had appeared for the husband on the appeal. In all the circumstances, we were prepared to receive these documents.

10. It will be useful to set out the major part of the submissions filed on behalf of the husband (together with headings, but omitting footnotes) particularly as it contains a summary of the contents of the husband’s affidavit:

    Relevant Facts

    2.1It is submitted that the following matters which are not the subject of issue between the parties are relevant to the Full Court’s further consideration of matters raised in the husband’s appeal:

    2.1.1The fact that there remain three undetermined sets of proceedings before the Supreme Court of India including significantly the husband’s challenge to the jurisdiction of the Court’s of that country properly to make orders in relation to the parties’ matrimonial affairs.

    2.1.2Significantly also, there remains undetermined the issue of whether [or] not the parties’ children will be permitted to remain in India, the husband having sought various orders that would in effect require the children to leave that country.

    2.1.3The dismissal of the wife’s Application for Divorce and for Maintenance. Interim Orders continue in relation to the payment of child support and the children’s living arrangements. These are Orders of course made pending determination of the substantive matters which are the jurisdictional issues.

    2.2The husband remains desirous of returning to Australia and this would occur if he is successful in the Indian Supreme Court proceedings referred to in his Affidavit.

    The husband’s Australian Application for Dissolution of Marriage

    3.1It is submitted that in light of the dismissal of the wife’s application for dissolution of marriage in India, there is no reason now why the Court should not immediately uphold the husband’s appeal from his Honour, the trial judge’s decision to permanently stay his Australian application for the same relief.

    3.2No case has been made out and indeed no fact asserted as to why the granting of the dissolution in Australia would cause any injustice or indeed any damage at all to the wife.

    The husband’s appeal from the trial Judge’s orders staying his applications in relation to children’s matters and other ancillary relief

    4.1The husband repeats the submissions already made in support of the orders sought by him.

    4.2Whether or not the Indian Courts have jurisdiction and indeed even if it is found that jurisdiction exists, whether that jurisdiction should be exercised remains unresolved in that country. As a consequence the husband, and more particularly the children of the relationship, remain in limbo. Although proceedings before the Indian Supreme Court have been expedited, they remain undetermined and the husband is unable to indicate when any hearing may take place.

    4.3In the circumstances, it is submitted that the Full Court should proceed to determine and uphold the husband’s appeal from the order permanently staying these issues in this country. The consequence would be to remit the proceedings for hearing at first instance.

    4.4Alternately, if it were the view of the Court that this aspect of the matter should remain before it until the outcome of the jurisdictional issue in India is determined, then it is submitted that the Court should, while upholding the appeal in relation to the husband’s application for dissolution, stand over for further argument the appeal in relation to ancillary issues.

11. On 26 March 2008 the wife emailed a letter to the Appeal Registry claiming that the husband had misrepresented certain matters in the material which he had filed, notably in relation to the grant of a divorce. While apparently conceding that she had not been granted a divorce, she maintained that she had been granted a judicial separation, which is a “pre runner” to the grant of a divorce.

12. On 5 May 2008 the husband’s solicitors forwarded to the Appeal Registrar a copy of a decree of the Family Court at Mumbai, apparently dated 4 April 2008 which states that “Petition for divorce is dismissed”. There are also provisions for the wife to have custody of the children with access to the husband who is to pay child maintenance. There appears to be no reference in the decree to the grant of a judicial separation.

13. On 14 May 2008 the wife wrote to the Appeal Registry (with a copy to the husband’s solicitors) saying (omitting formal parts):

    I have received the email from [the husband’s solicitors] to you, a copy of which was marked to me.

    I would like to state the following in reply:

    (i) My email to you was sent on March 26, 2008, when neither the copy of the decree (dated April 10, 2008), nor the reasoned order (dated April 20, 2008) was available with me. My statement to you was based on the short order issued by the Family Court, Mumbai on March 5, 2008.

    (ii)However, from the attached order, I may point out that the decree itself (at page 2) describes the reliefs prayed for by me in the Family Court as:

    “(a)  for a decree of judicial separation u/S.10 of the Hindu Marriage Act.

    Alternatively

    a(1) that a decree be passed dissolving the marriage solemnized [in 1989]”.

    The judge of the Family Court, Mumbai has herself stated that the reliefs were prayed for in the alternative – dismissing one does not necessarily mean that the other is also dismissed;

    (iii)While the decree states that the Petition for divorce is dismissed, there is nothing to show that the prayer for judicial separation has been similarly dismissed.

    (iv)It is also very clear from the decree itself that the custody of the children is to remain with the Wife, separate from the Husband. This can also be seen from the manner in which access has been granted to the Husband, whereby the Husband is required to pick up and hand over the children from and at the Wife’s residence. The Wife has also been granted maintenance for the children. All of the above would go to show that the Husband and Wife are separate, and treated as such by the court.

    (v)In the circumstances, I believe I could legitimately presume that my petition for judicial separation has been allowed, since only the petition for divorce was stated to be dismissed.

    In any event, you are requested to note that I am in the process of filing an Appeal against the order of the Family Court, Mumbai. The said Appeal will be filed in the High Court of Judicature at Bombay.

1. On 2 December 2008 the wife again wrote to the Appeal Registry (with a copy forwarded to the solicitor for the husband), providing the following update of the “status of the matter in India”:

   Both the Husband and I have filed Appeals in the Bombay High Court against the order of the Family Court, Mumbai, being Family Court Appeal No. 109 of 2008 (filed by me), and Family Court Appeal No. 126 of 2008 (filed by the Husband).  The Appeals are pending.  I have filed certain civil applications in the said Appeals for interim reliefs, which are in the process of being heard by a Division Bench of the Bombay High Court – in fact, the Civil Application filed in my Appeal is to come up for hearing tomorrow, December 3^rd, 2008.

   The Husband has left India and has gone to Sweden, where he apparently resides and works now.  I understand that there is now nothing left for him in Australia.

2. On 11 December 2008, the solicitor for the husband wrote to the Appeal Registry providing the husband’s response (with a copy to the wife), which was (omitting formal parts):

   1. An appeal is pending in the Mumbai High Court where our client challenged the inherent jurisdiction of the Indian Courts to entertain the wife’s petition for matrimonial relief and with regard to Orders made in that jurisdiction regarding custody of our client’s children.

   2.The wife filed a separate appeal in the Mumbai High Court with regards to proceedings for dissolution of marriage and her maintenance.

   3.Neither of these matters have been resolved.

   4.Appeals in the Mumbai High Court are expected to take several years before they are heard.  In the meanwhile our client has no practical solution with regards to access to his children.

   5.In addition our client has an appeal which is pending in the Supreme Court of India.  (This is a superior Court to the Mumbai High Court).  This has been referred to in the Australian proceedings and goes to the issue of any Indian Court’s jurisdiction to entertain the matter at all, including the dissolution of marriage and to do otherwise than to Order that the children be returned to Australia.

   6.Our client has recently moved to Sweden a country of which he is a citizen.  He has every intention to return to Australia on resolution of this matter.

Conclusion

1. We are able to infer on the basis of the material received from both parties that the issue of jurisdiction in the Indian Courts to determine either the divorce or ancillary proceedings relating to the children of the marriage, which was the issue of concern to us, remains to be determined by the appellate courts of that country, notwithstanding that the divorce and ancillary proceedings have proceeded in a lower court or courts (apparently on the basis that the jurisdiction question remains to be determined).

2. In these circumstances we think that the only way to finalise the current appeal is to amend Steele J’s order to provide for a temporary stay of the husband’s proceedings in Australia, pending resolution of the jurisdiction issue in India.

3. Once that issue is determined in India, it would be open to the husband to apply at first instance for a lifting of the temporary stay.

4. Our orders therefore will be:

   1.    That the appeal be allowed.

   2.That the order made by the Honourable Justice Steele on 26 August 2005 be amended to provide that the appellant husband’s applications filed on 11 March 2005 in the Family Court of Australia be stayed pending the determination in India of the question as to whether the courts of that country have jurisdiction to determine divorce and other matrimonial proceedings between the appellant husband and the respondent wife.

   3.That there be liberty to the appellant husband to apply to re-list his applications in the Family Court of Australia in the event that the courts of India determine that there is no jurisdiction to entertain divorce and/or other matrimonial proceedings between the appellant husband and the respondent wife.

5. As to the costs of the appeal we consider that this would be an appropriate case for the parties to apply for a costs certificate in respect of any legal costs incurred by them.

I certify that the preceding twenty-six (26) paragraphs are a true copy of the reasons for judgment of the Honourable Full Court 

Associate: 

Date:  17 December 2008