Sankil & Sankil

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

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

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