Sarai and Talwar
[2018] FamCAFC 22
•13 February 2018
FAMILY COURT OF AUSTRALIA
| SARAI & TALWAR | [2018] FamCAFC 22 |
| FAMILY LAW – APPLICATION IN AN APPEAL – Summary dismissal – Where the applicant seeks the summary dismissal of an appeal from a divorce order – Where the appeal raises an issue as to whether the divorce proceedings should be heard in Australia or India – Where the proposed grounds of appeal are not so weak as to enable a finding that the appeal has no reasonable prospects of success – Application dismissed – No order as to costs. |
| Family Law Act 1975 (Cth) ss 96AA, 102QB Dowry Prohibition Act 1961 (India) |
| Ebner & Pappas (2014) FLC 93-619 Lindon v Commonwealth (No. 2) (1996) 136 ALR 251 Voth v Manildra Flour Mills Pty Ltd (1990) 171 CLR 538 |
| APPLICANT: | Mr Sarai |
| RESPONDENT: | Ms Talwar |
| FILE NUMBER: | CAC | 425 | of | 2017 |
| APPEAL NUMBER: | EA | 110 | of | 2017 |
| DATE DELIVERED: | 13 February 2018 |
| PLACE DELIVERED: | Sydney |
| PLACE HEARD: | Sydney |
| JUDGMENT OF: | Aldridge J |
| HEARING DATE: | 21 December 2017 |
| LOWER COURT JURISDICTION: | Federal Circuit Court of Australia |
| LOWER COURT JUDGMENT DATE: | 28 September 2017 |
| LOWER COURT MNC: | [2017] FCCA 2267 |
REPRESENTATION
| SOLICITOR FOR THE APPLICANT: | Hugh Ford Law |
| THE RESPONDENT: | In person |
Orders
The Application in an Appeal filed on 24 November 2017 is dismissed.
There be no order as to costs.
Note: The form of the order is subject to the entry of the order in the Court’s records.
IT IS NOTED that publication of this judgment by this Court under the pseudonym Sarai & Talwar has been approved by the Chief Justice pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth).
Note: This copy of the Court’s Reasons for Judgment may be subject to review to remedy minor typographical or grammatical errors (r 17.02A(b) of the Family Law Rules 2004 (Cth)), or to record a variation to the order pursuant to r 17.02 Family Law Rules 2004 (Cth).
| IN THE APPELLATE JURISDICTION OF THE FAMILY COURT OF AUSTRALIA AT SYDNEY |
Appeal Number: EA 110 of 2017
File Number: CAC 425 of 2017
| Mr Sarai |
Applicant
And
| Ms Talwar |
Respondent
REASONS FOR JUDGMENT
Introduction
On 28 September 2017, Judge Tonkin made a divorce order in proceedings between Mr Sarai (“the applicant”) and Ms Talwar (“the respondent”). The respondent filed a Notice of Appeal on 26 October 2017 and on 24 November 2017 the applicant filed an Application in an Appeal seeking the following orders:
1.The application in appeal is accepted
2.The appeal is dismissed
3.A divorce order be granted to the respondent.
4.The appellant pay the respondent’s costs of and incidental to this application.
5.the appellant be permanently restrained from filing any further proceeding in Australia in relation to the divorce.
6.The appellant pay the respondent’s costs of the proceedings before the primary judge.
(As per original)
Many of the prayers for relief in the application are misconceived.
The first is prayer 3, which seeks a divorce order. A divorce order has already been made. If the appeal is dismissed then the divorce order made by the primary judge on 28 September 2017 will stand and there is no need or indeed scope for a further order.
If the appeal is successful, the divorce order made by the primary judge will be set aside. It would then be a matter for the Court as to whether it would consider making a divorce order itself or remit the matter to the Federal Circuit Court of Australia.
Prayer 5 seeks an injunction restraining the respondent from filing any further proceeding in Australia in relation to the divorce. It was submitted that this application could be made by the Court in the exercise of its “inherent power”. That is an interesting submission in the light of s 102QB of the Family Law Act 1975 (Cth) (“the Act”) but it is not necessary to dwell on the point. It is a matter to be considered at first instance, if it is to be considered, and not on the hearing of an interlocutory Application in an Appeal that is yet to be determined. This is because it involves an exercise of original and not appellate jurisdiction.
Prayer 6 seeks an order in relation to the costs of the proceedings before the primary judge. The appropriate course to seek those costs is to make an application before the primary judge.
Therefore, it remains to deal with the application that the appeal be summarily dismissed.
Summary dismissal
The application for summary dismissal was put on the basis that the appeal had no reasonable prospects of success. Section 96AA of the Act empowers a Court to order that the proceedings on the appeal be dismissed (either generally or in relation to a specific ground) if it appears to the Court that the appeal has no reasonable prospect of success.
The words “no reasonable prospect of success” are very similar to the words “no reasonable likelihood of success” which appear in r 10.12 of the Family Law Rules 2004 (Cth). That rule was the subject of a significant discussion in Ebner & Pappas (2014) FLC 93-619 (“Ebner”) at [56]–[63]. It is clear that this test is less stringent than the former “doomed to fail” test. However, as the Court did in Ebner, it is still important to note the comments of Kirby J in Lindon v Commonwealth (No. 2) (1996) 136 ALR 251 (“Lindon”) at 256 in relation to the caution that must be attached to cases involving summary dismissal.
The applicant submits that the appeal has no reasonable prospects of success because:
·the respondent’s arguments are the same arguments that were placed before the primary judge in detailed submissions and which were rejected by her;
·no error of law has been identified which would be allowed by the Court on appeal; and
·the cases relied upon by the respondent are distinguishable on their facts.
In order to be successful an appellant must demonstrate error on behalf of the primary judge. In the ordinary course, an appellant may not raise new arguments but is limited to those raised before the primary judge. Thus it is not at all improper and in fact it is entirely unexceptional for an appellant to repeat the arguments made to the primary judge and to submit that the error made was that these arguments were not accepted.
Thus this aspect of the application has no substance.
The other two aspects of the submissions invite the Court to investigate the merits of the appeal.
The grounds of appeal are discursively drawn; indeed, they are more akin to submissions than grounds of appeal. However, they clearly raise the issue as to whether the primary judge was correct to find that the parties separated in the circumstances found by her and whether her Honour was to correct that the proceedings were not oppressive to the respondent in the sense discussed in Voth v Manildra Flour Mills Pty Ltd (1990) 171 CLR 538.
The primary judge found that in order to obtain a divorce, the respondent had to prove not only that the parties had not lived together for 12 months but that they had, in fact, separated. This in turn, in her Honour’s view, required her to establish that the applicant had intended to separate from her, had communicated that intention to her and had acted upon it.
The parties are Indian nationals by birth, but the applicant has been an Australian citizen for a number of years.
When visiting India in early 2013 he met and arranged to marry the respondent. He returned to India in August 2013 and the parties were married later that month.
In September 2013 the respondent completed an application for a spouse visa so that she could join the applicant in Australia.
The applicant returned to Australia on 7 September 2013. He applied for a cancellation of the respondent’s partner visa on 31 December 2013.
Nonetheless, the respondent travelled to Australia on 20 May 2014 and returned to India on 11 August 2014.
She attempted to locate the applicant and was initially unsuccessful. Upon locating the applicant, he refused to allow her to enter his property and told her to “go away”. She subsequently became aware, on 29 May 2014, that the applicant had contacted the Department of Immigration (“the Department”) for cancellation of her partner visa and that she had to leave Australia.
On return to India, the respondent commenced proceedings against the applicant and his family pursuant to the Protection of Women from Domestic Violence Act 2005 (India), Indian Penal Code 1860 (India) and the Dowry Prohibition Act 1961 (India). In those proceedings, amongst other things, the respondent asserts that the applicant and his family have unlawfully demanded a dowry from her and her family and have unlawfully retained gifts that were provided upon marriage. The applicant has appeared in those proceedings and, at least as at the date of the hearing before the primary judge, was continuing to engage in them.
On 26 July 2017 an order for the payment of interim maintenance by the applicant to the respondent was made in the Metropolitan Magistrates Court in India.
On 10 March 2017 the applicant filed a divorce application in the Federal Circuit Court of Australia in the Canberra registry. He asserted that the parties had married in India in August 2013 and had separated on 31 December 2013. The asserted date of separation was the date upon which he applied for the cancellation of the partner visa.
On the hearing the primary judge found that as the applicant did not communicate this cancellation to the respondent, he could not establish that he had communicated his intention to separate to the respondent.
However, the primary judge found that the refusal to allow the applicant to enter his property, telling her to go away and contacting the Department as he did (of which the respondent became aware) were sufficient to convey his intention to separate to the respondent.
The respondent contends that this finding was in error and that “a categorical statement of intention” was required.
Whilst the prospects of success on this ground may not be described as at all high, on balance I do not consider that they can be described as so weak as to have no reasonable prospects of success.
The bulk of the Notice of Appeal concerns the issue as to whether or not Australia was a clearly inappropriate forum.
The primary judge took into account the following matters in determining that Australia was not a clearly inappropriate forum to hear and determine the divorce application:
·Any divorce order made in Australia was unlikely to be recognised in an Indian court.
·However, it is unlikely that any divorce order made in Australia would have a “disastrous” effect on the respondent’s litigation in India.
·Nonetheless the effect of a divorce order in Australia is that unless a divorce order could be obtained in India, the effect would be that under Australian law the parties were divorced, whereas under Indian law the parties would remain married. The respondent lives in India.
·Neither of the parties would be likely to obtain a divorce order under s 13 of the Hindu Marriage Act 1955 (India) on the facts before the primary judge.
·Both parties are able to participate in the proceedings in both jurisdictions on an equal footing.
·A divorce order in Australia would not negatively affect the respondent’s interests in the current Indian litigation.
·The applicant has a right to seek a divorce in Australia and as an Australian citizen he is entitled to the benefits and protections of Australian law.
The respondent contends that the primary judge erred because:
·The entire transaction relating to the marriage had taken place in India and it is appropriate that only one court have jurisdiction over the entire transaction including maintenance, financial settlement, domestic violence cases and divorce.
·The effect of the order is that the respondent’s marital status will not be affected in India because the decree will not be recognised there.
·The applicant has the potential to use the decree, however, to absolve himself from his liability to pay maintenance and other financial benefits, and the return of valuables to the respondent.
·The applicant participated in and contested the proceedings in India for about two and half years.
·The commencement of the divorce proceedings was merely “forum shopping”.
·The respondent does not have the financial means or the residential capacity to contest proceedings in Australia effectively.
·The primary judge failed to give any weight to the injunction granted by the court in India on 27 May 2017.
·The proceedings in India were commenced first.
Questions as to the appropriate forum in which proceedings should be heard are often difficult and require close consideration of many issues. Clearly the issues raised by the respondent have some weight. Whether the primary judge erred by not making the findings sought by the respondent and by not giving them the weight sought by the respondent is a different matter. However I consider that these grounds raise some issues of substance.
My task is to determine whether or not the appeal has no reasonable prospects of success such that it should be summarily dismissed without proceeding to a final hearing. I note in this regard, as Kirby J pointed out in Lindon, that a “weak” appeal does not of itself justify a summary dismissal.
I consider I am not in a position to find that the appeal instituted by the respondent is so weak as to enable the finding that it has no reasonable prospect of success. It follows therefore that the application for summary dismissal will be dismissed.
Costs
The respondent informed me that she had not engaged a lawyer to assist her with this application. Accordingly, it is appropriate that there be no order as to costs.
I certify that the preceding thirty-five (35) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Aldridge delivered on 13 February 2018.
Legal associate:
Date: 13 February 2018
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