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

2005

APPEAL NUMBER:

EA
EA

110

142

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

That the appeal be allowed.
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.
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.
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.
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…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

Continue reading Sankil & Sankil

Details

AGLC: Sankil & Sankil [2008] FamCAFC 205
Case: [2008] FamCAFC 205
Decision Date: 17 December 2008

CaseChat Overview and Summary

In the appeal of Sankil & Sankil, the Full Court was tasked with resolving disputes related to the dissolution of marriage, jurisdictional challenges, and ancillary relief between the husband and wife. The husband sought to dissolve the marriage in Australia, while the wife had filed a divorce application in India. The trial judge had stayed the husband’s Australian application pending the outcome of the jurisdictional challenge in India. The husband appealed the permanent stay of his application for dissolution and ancillary relief in Australia.

The court had to determine whether the Australian court should stay proceedings pending the resolution of the jurisdictional issue in India, and if so, under what conditions. The court also needed to decide whether the husband’s application for dissolution and ancillary relief should be permanently stayed until the Indian court resolves the jurisdictional matter, or if the Australian court should proceed with the husband’s application.

The Full Court held that the Australian proceedings should remain stayed pending the resolution of the jurisdictional issue in India. However, the court did not uphold the permanent stay on the husband’s application for dissolution and ancillary relief. Instead, it allowed the husband’s appeal and directed that the applications be stayed only until the Indian courts determine whether they have jurisdiction. The court also granted the husband liberty to reapply if the Indian courts rule against jurisdiction. The court further ordered that both parties receive a costs certificate under the Federal Proceedings (Costs) Act 1981, reflecting the appropriate allocation of costs between the parties.

Orders

Orders of the court

That the appeal be allowed.

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.

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.

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.

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.

Background

Background to the litigation

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 Facts2.1It 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 Marriage3.1It 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 relief4.1The 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.

Evidence

Evidence Before The Court

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Decision

Reasons for decision

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Ratio Decidendi

Legal Principle Established

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