Siraj & Siraj
[2022] FedCFamC2F 1188
Federal Circuit and Family Court of Australia
(DIVISION 2)
Siraj & Siraj [2022] FedCFamC2F 1188
File number(s): PAC 769 of 2022 Judgment of: JUDGE TAGLIERI Date of judgment: 1 September 2022 Catchwords: FAMILY LAW – Divorce proceedings commenced by applicant wife – divorce order granted by a Deputy Registrar on an undefended basis – Application for Review filed by respondent husband – hearing de novo – procedural fairness – whether Court should exercise jurisdiction – appropriate forum – divorce order granted Legislation: Family Law Act 1975 (Cth) ss 48, 55(1)(a)
Federal Circuit and Family Court of Australia Act 2021 (Cth) ss 254, 256
Federal Circuit and Family Court of Australia (Family Law) Rules 2021 (Cth) part 14.3
Hindu Marriage Act 1955 (India)
Cases cited: Bakshi & Mahanta (No.2) [2022] FedCFamC1A 90
Henry v Henry (1996) 185 CLR 571
Voth v Manildra Flour Mills Pty Ltd [1990] HCA 55
Division: Division 2 Family Law Number of paragraphs: 57 Date of hearing: 24 August 2022 Place: Hobart Counsel for the Applicant: Mr Sirohi Solicitor for the Applicant: Harish Prasad & Associates Counsel for the Respondent: In person ORDERS
PAC 769 of 2022 FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 2)
BETWEEN: MS SIRAJ
Applicant
AND: MR SIRAJ
Respondent
order made by:
JUDGE TAGLIERI
DATE OF ORDER:
1 September 2022
THE COURT FINDS THAT:
1.That the marriage is proved.
2.The applicant, Ms Siraj, was at all material times resident and domiciled in Australia.
3.There are no children under the age of 18 years to whom the provisions of the Family Law Act 1975 (Cth) apply.
4.The ground for the application for a divorce order, namely that the marriage has irretrievably broken down, is proved.
THE COURT ORDERS THAT:
5.A divorce order is made, such order to become effective on 2 October 2022.
Note: The form of the order is subject to the entry in the Court’s records.
Note: This copy of the Court’s Reasons for judgment may be subject to review to remedy minor typographical or grammatical errors (r 10.14(b) Federal Circuit and Family Court of Australia (Family Law) Rules 2021 (Cth)), or to record a variation to the order pursuant to r 10.13 Federal Circuit and Family Court of Australia (Family Law) Rules 2021 (Cth).
Section 121 of the Family Law Act 1975 (Cth) makes it an offence, except in very limited circumstances, to publish proceedings that identify persons, associated persons, or witnesses involved in family law proceedings.
IT IS NOTED that publication of this judgment by this Court under a pseudonym Siraj & Siraj has been approved pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth).
REASONS FOR JUDGMENT
Judge Taglieri
This judgment concerns an Application for Review filed 6 July 2022 (“the application”) pursuant to s 256 of the Federal Circuit and Family Court of Australia Act 2021 (Cth) (“the FCFCOA Act”). The Respondent Husband has applied to review a decision of a Registrar made on 17 June 2022, when she purported to exercise delegated power and made a divorce order on an undefended basis.
I conducted a hearing of the review application on 24 August 2022 by Microsoft Teams. The Husband appeared self-represented and the Wife was represented by a legal practitioner.
Review – Legal principles
Section 256 of the FCFCOA Act provides the Court with power to review decisions made by Registrars pursuant to delegations provided for in s 254 of the FCFCOA Act. The procedure for the reviews are contained in Part 14.3 of Chapter 14 of the Federal Circuit and Family Court of Australia (Family Law) Rules 2021 (Cth) (“the Rules”) and the nature of the hearing is de novo. I am to decide afresh the application for divorce.
Materials relied upon by parties
The Husband relied upon:
·the Application for Review filed 6 July 2022;
·the Response to Divorce filed 11 April 2022; and
·his affidavit affirmed 19 May 2022 and filed 23 May 2022.
The Wife relied upon:
·the Application for Divorce filed on 17 February 2022; and
·her affidavit affirmed and filed 10 June 2022.
Background facts not in dispute
The respective materials filed by the parties reveal that there is no dispute between the parties about the following facts and I make findings accordingly.
The parties were married in 1996 according to Hindu customs and rites in India.
In 2015, the Wife had filed a petition for divorce and an application for grant of maintenance in relation to the parties’ minor daughter in India.
The Wife moved to Australia from at least 2016, and she is now a resident of Australia and domiciled here. The Husband is not a resident of Australia and has continued to live in India since the Wife left.
The parties have lived separately and apart since at least 2016.
The parties do not have children under the age of 18 years now or at the time the Application for Divorce was filed.
In 2017, the Husband filed a petition for restitution of conjugal rights pursuant to the Hindu Marriage Act 1955 (India) in the Indian Family Court.
The Wife’s petitions for divorce and maintenance in India have been disposed of as withdrawn on 9 November 2021.[1]
[1] Response to Divorce filed 11 April 2022 at Annexures B and C.
The only pending proceedings in India relate to the Husband's application for restoration of conjugal rights.
Parties’ contentions
Husband
The Husband states that he was advised by email from the Court, after the hearing time on 17 June 2022, that the divorce had been granted. The basis upon which he seeks the review is that he was not afforded a hearing. The contents of the application plainly raise an issue of procedural fairness.
In the review application, which has been affirmed and apparently witnessed in accordance with the law in India, he states that he had attempted to participate in the hearing on 17 June 2022 by telephone, but had been unable to link into the hearing when he made a number of calls at the time allocated for the hearing.
It is evident from the Husband's Response and affidavit filed 23 May 2022 that he opposes the granting of a divorce by this Court in Australia. His contention is that the parties were married in India and commenced proceedings in India relating to the marriage, some of which are still pending. As such, he says, the appropriate forum is not the Australian court, but the Indian Family Court.
He also submits that the only reason the Wife withdrew her proceedings from the Indian Family Court was that she had been or would be discovered for “manipulation of documents”,[2] misrepresentations and/or false statements in documents purported to be affirmed on oath for the purpose of the Indian proceedings.
[2] Response to Divorce filed 11 April 2022 at page 4 and Annexures D and E; affidavit of the Husband filed 23 May 2022 at [6].
Although not articulated in a particularly legal manner, it is evident that he contends that that this Court should not entertain granting the divorce because the Court is an inappropriate forum.
Wife
The submissions for the Wife are simply that the Court has jurisdiction as the Wife is resident and domiciled in Australia and the ground for divorce in s 48 of the Family Law Act 1975 (Cth) is satisfied on the undisputed evidence and facts before the Court.
Responding to the forum submissions, the Wife contends that Australia and this Court is the appropriate forum for the divorce proceedings as there are no equivalent proceedings elsewhere. Further, that the Husband’s allegations about why she withdrew her divorce petition in India are pure speculation and that the true explanation is contained in her affidavit filed 10 June 2022 at [13] to [15]. That is, she withdrew her proceedings because they had become prolonged and had drawn to a stalemate.
There was a concession by the Wife that there was a pending proceeding in the Family Court of India, but submissions on her behalf emphasised the evidence contained in her affidavit filed 10 June 2022 at [9] and [10] about the nature of the Husband’s proceedings.
It was submitted that there was no likely basis upon which the court in India would make any order for restitution of conjugal rights, given the length of the parties’ separation and the fact that the Wife was resident in Australia and had no intention of living in India.[3]
[3] Affidavit of the wife filed 10 June 2022 at [11] to [12].
The proceedings in India commenced by the Husband were described to be totally ambitious and could be regarded as vexatious as the parties have not been living together as husband and wife for many years.
It was submitted that the review application should be dismissed, resulting in the divorce order becoming absolute as of 18 July 2022.
No submissions were made about the Husband’s claim that he was not given opportunity to be heard at the hearing on 17 June 2022. I raised this with the Wife’s legal practitioner who initially submitted that the failure to participate in the hearing was “the husband’s fault”.
I drew attention to the affirmed statements about attempts to participate in the hearing and the materials existing on the record at that time which demonstrated opposition to the grant of divorce.[4] I commented that the evidence had not been put in issue by the Wife and was likely to be accepted, as they were consistent with the Court’s own records.
[4] [15] and [16] of these reasons; Application for Review filed 6 July 2022 at [6] and [7].
I directly enquired, if I was to allow the review in part for absence of procedural fairness and then determined the contested divorce de novo, did the Wife have submissions about the date of effect of a divorce order should it be made. No submission was made contrary to the suggestion it should take effect one month from the date of my order.
Reply submission by husband
In reply the Husband again emphasised his claim that the Wife had only withdrawn the proceedings in India because of fear of being found out about false oaths. He repeated submissions about the content of the Response at page 30, being annexure of a copy of the order made on 28 January 2020 by the Family Court in India. This document was said to somehow evidence that the Wife was fearful of the being found out and that motivated her to withdraw the Indian proceedings. He also emphasised his affidavit filed 23 May 2022 at [3] to [6].
Evaluation and determination
The fact of the Husband’s opposition to the grant of divorce was plainly evident from documents he had filed in the proceedings and were known to the Registrar on 17 June 2022 when the Application for Divorce was listed before her.
The Wife has not taken issue with the Husband’s evidence that he had attempted to contact the Court by telephone to participate in the hearing before the Registrar.
I accept the Husband’s evidence and find that he made genuine attempts on multiple occasions to participate in the hearing before the Registrar on 17 June 2022 when the divorce was granted on an undefended basis.
Given the extent of the Husband’s opposition to the divorce, which was known from the court record, the Registrar ought not have proceeded on an undefended basis, even though the husband had not successfully dialled into the hearing.
I have arrived at the conclusion at [33] because there are a multitude of technical difficulties or delays that commonly may arise from conducting court events electronically, particularly when parties are in different countries and time zones.
The Registrar reasonably ought to have been aware the divorce was defended. Registrars do not have delegated power to hear a defended divorce.[5] It reasonably ought to have been known that there likely was a reasonable and proper explanation for the Husband’s non-appearance at the hearing, given his active participation in the proceedings to that time.
[5] Section 254(3) of the FCFCOA Act.
I consider the Application for Divorce should have been adjourned and listed on notice before a Judge for hearing.
Accordingly, I conclude that there is merit in the contention that the Husband was not afforded procedural fairness. However, this conclusion does not dispose of the review.
De novo consideration of Divorce application
Forum issue
The Husband has now participated in a de novo hearing of the divorce application. He has tendered evidence, put his case and made submissions in opposition to a divorce order being made. He contends this Court is not the appropriate forum for granting a divorce and seeks a stay or dismissal of the Wife’s application.
The legal principles that apply to disputes about forum are well settled. I refer to those by reference to the recent appeal decision of the Federal Circuit and Family Court in Bakshi & Mahanta (No.2) [2022] FedCFamC1A 90.[6]
[6] At [48] to [52].
In summary, the salient issue is whether this court is a completely inappropriate forum, which is to be informed by well-known principles identified in Voth v Manildra Flour Mills Pty Ltd [1990] HCA 55 and are as follows:
30.Before we refer to the judgments of the majority in Oceanic Sun, we should state very briefly what we take to be the common ground between them. First, a plaintiff who has regularly invoked the jurisdiction of a court has a prima facie right to insist upon its exercise. Secondly, the traditional power to stay proceedings which have been regularly commenced, on inappropriate forum grounds, is to be exercised in accordance with the general principle empowering a court to dismiss or stay proceedings which are oppressive, vexatious or an abuse of process and the rationale for the exercise of the power to stay is the avoidance of injustice between parties in the particular case. Thirdly, the mere fact that the balance of convenience favours another jurisdiction or that some other jurisdiction would provide a more appropriate forum does not justify the dismissal of the action or the grant of a stay. Finally, the jurisdiction to grant a stay or dismiss the action is to be exercised "with great care" or "extreme caution".
The principles in Voth were the subject of further consideration by the High Court of Australia in Henry v Henry (1996) 185 CLR 571. The focus of the further consideration was on the relevance of simultaneous proceedings in different countries in respect of the same controversy. The members of the High Court in Henry concluded at:
36.It does not follow that, because one or other of the proceedings is prima facie vexatious or oppressive within the Voth sense of those words, the local proceedings should be stayed. However, it does follow that the fact that there are or, even, that there may be simultaneous proceedings in different countries with respect to the same controversy is highly relevant to the question whether the local proceedings are oppressive in the sense of "seriously and unfairly burdensome, prejudicial or damaging", or, vexatious, in the sense of "productive of serious and unjustified trouble and harassment". And it also follows that courts should strive, to the extent that Voth permits, to avoid that situation.
In Bakshi & Mahanta (No 2), the Justices of the Appeal Court stated in reference to the importance of the existence of parallel proceedings being highly relevant to whether the local proceedings are oppressive:
50.…However, in Navarro & Jurado [2010] FamCAFC 210; (2010) 44 Fam LR 310 (“Navarro”) at [264], Ryan J, agreeing with Finn J in Ferrier-Watson v McElrath [2000] FamCA 219; (2000) FLC 93-022, pointed out there is nothing in Henry which would provide support for an automatic stay or dismissal of the local proceedings.
51.Despite some earlier suggestion that the local court should engage in some analysis of the foreign litigation (for example Henry at 592–593; Navarro at [64]), it now appears settled that the focus is on the inappropriateness of the local court. The focus is not upon the appropriateness or comparative appropriateness of the foreign forum, but on assessing whether there are enough factors indicating that the local forum is clearly inappropriate, in which case a stay should be granted…
Furthermore, as to the onus of persuasion about whether a court is an inappropriate forum, the court stated:
52.There is no doubt that the wife bore the onus of establishing Division 2 as a clearly inappropriate forum: Navarro at [188].
Critically the Husband has not directly made a submission that this Court is a completely inappropriate forum. Rather, his submissions were to the effect that the Indian Family Court was a more appropriate forum. He relies on:
·his convenience, namely that he is an Indian citizen and lives there;
·the fact that there were previous proceedings for divorce in India which were allegedly withdrawn due to impropriety by the Wife; and
·his pending application for restitution of conjugal rights.
Regardless of the fact that there were divorce proceedings in India, there were none when the Wife filed her Application for Divorce in February 2022 and there are none in India now. The Husband admitted this on direct questioning.
I consider there is no merit in the assertion that there is some connection between filing for divorce in Australia and/or mischief involved in the withdrawal of the divorce petition and maintenance proceedings in India. As I pointed out to the Husband during the hearing, the Wife applied to withdraw her proceedings in India in 2019 and the Indian court eventually ordered them finalised by withdrawal on 9 November 2021. The Oath Commissioner had not appeared before the Indian Court as previously required and on 28 January 2020, a show cause notice issued respecting that. Despite all of the above, the Wife did not commence proceedings for divorce in this Court until February 2022.
Accordingly, I accept that the Husband’s submissions about the Wife’s motivation for withdrawing the Indian divorce proceedings are mere speculation. There is nothing in the Response or affidavits relied on by the Husband, including copies of the orders made in India over the years, which establish to my satisfaction what is alleged about the Wife making false statements in the proceedings in India.
At best on the Husband’s case, there was an allegation of falsity and manipulation of documents and a show cause process was to occur, which could involve or mean anything, with the outcome of such unknown.[7]
[7] Response to Divorce filed 11 April 2022 at Annexure E.
I accept the Husband’s submission that the Application for Divorce filed in February 2022 failed to disclose the existence of his pending proceeding in India. However, I accept the explanation given by the Wife for this.[8] The multitude of appearances and orders, evidenced by the attachments to the Husband’s affidavit filed 23 May 2022, bear out the Wife’s explanation of prolonged proceedings over some 7 years without finalisation.
[8] Affidavit of the Wife filed 10 June 2022 at [13] to [15].
In addition, I highlight what the Appeal Court stated in Bakshi & Mahanta (No 2): at [51] –
51.Despite some earlier suggestion that the local court should engage in some analysis of the foreign litigation (for example Henry at 592–593; Navarro at [64]), it now appears settled that the focus is on the inappropriateness of the local court. The focus is not upon the appropriateness or comparative appropriateness of the foreign forum, but on assessing whether there are enough factors indicating that the local forum is clearly inappropriate, in which case a stay should be granted:
Following the guidance above, I do not need to embark on an analysis of the respective proceedings. However, I note that there appears to be no obvious parallel between the application for restoration of conjugal rights in India and the Application for Divorce in this Court. The only evidence about the nature of the former proceedings is contained in the Wife’s affidavit annexing section 9 of the Hindu Marriage Act 1955 (India). The provision appears to be confined to a remedy about conjugal rights, rather than the totality of commonly recognised factors indicative of continuation of a marriage-like relationship.
I directly asked the Husband to tell me what the claimed prejudice was to him if this Court granted the Application for Divorce, but I did not receive a satisfactory response. Instead, the Husband repeated assertions that he is in India and inferred unspecified disadvantage, stating “let the Indian court decide”.
The Husband has not persuaded me that this Court is a completely inappropriate forum because:
(a)The Wife has properly made her application and the Court has jurisdiction, given she is resident and domiciled in Australia. Accordingly, prima facie she is entitled to insist on the Court exercising its jurisdiction;
(b)The Application for Divorce is not, in my view, oppressive or vexatious or an abuse of process for the reasons at [44] to [51] and the Husband has not satisfied the Court of an injustice between the parties if the divorce application is determined by this Court;
(c)The balance of convenience is relatively equal as each party has convenience in the country where they reside and have belongings; and
(d)Exercising care and caution, I see no legitimate basis to relinquish the Court’s jurisdiction on the basis of the evidence and submissions placed before me by the Husband.
Should A DIVORCE ORDER be granted?
There is jurisdiction to hear the Application for Divorce as the Wife is a resident and domiciled in Australia.
I am satisfied on the basis of the undisputed facts,[9] that the grounds for divorce in s 48 of the Family Law Act 1975 (Cth) are satisfied. The marriage has irretrievably broken down because the parties have been separated and lived apart for well over 12 months, maintaining separate residence from at least 2016 when the Wife moved to Australia.
[9] [6] to [11] of these reasons.
The Husband has continued his life in India and although he seeks resumption of conjugal rights, the Wife deposes and I accept that she has no intention of ever resuming a relationship with the Husband or returning to India. Accordingly there is no reasonable likelihood of cohabitation being resumed.
By order, I make an order for divorce, the effective date of which will be one month from the date of this judgment. The effective date of the divorce order should correspond with the requirement in s 55(1)(a) of the Family Law Act 1975 (Cth) because it was only as a result of the de novo hearing of these proceedings, that the Husband has now had a procedurally fair defended hearing about the Wife’s divorce application.
I certify that the preceding fifty-seven (57) numbered paragraphs are a true copy of the Reasons for Judgment of Judge Taglieri. Associate:
Dated: 1 September 2022
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