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…

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 Siraj & Siraj

Details

AGLC: Siraj & Siraj [2022] FedCFamC2F 1188
Case: [2022] FedCFamC2F 1188
Decision Date

CaseChat Overview and Summary

In the case of Siraj & Siraj, the Federal Circuit and Family Court of Australia was called upon to review a divorce order granted by a Deputy Registrar on an undefended basis. The respondent husband had filed an Application for Review, asserting that he was not afforded procedural fairness during the original hearing and that the Australian court was not the appropriate forum for the divorce proceedings. The legal issues the court had to decide included whether the Husband was denied procedural fairness and if the Australian court was the appropriate forum for granting the divorce.

The court found that the Husband had genuinely attempted to participate in the hearing but was unable to connect due to technical difficulties. The court held that the Registrar should have been aware that the divorce was defended and should have adjourned the matter for a hearing before a Judge. Consequently, the court concluded that there was merit in the Husband's contention that he was not afforded procedural fairness. However, this did not dispose of the review, as the court had to consider the forum issue de novo.

In terms of the forum issue, the court noted that the Husband had not directly argued that the Australian court was a completely inappropriate forum. Instead, he claimed that the Indian Family Court was a more appropriate forum. The court found that the Husband had not satisfied the burden of persuasion to establish that the Australian court was a clearly inappropriate forum. The court considered the Wife's application for divorce in Australia to be proper, and the Husband had not demonstrated an injustice between the parties if the divorce application was determined by the Australian court.

Ultimately, the court concluded that there was jurisdiction to hear the Application for Divorce as the Wife was a resident and domiciled in Australia. The court found that the grounds for divorce were satisfied, and the marriage had irretrievably broken down. The court granted the divorce order, with the effective date being one month from the date of the judgment.

The final orders of the court were that the marriage was proved, the applicant was at all material times resident and domiciled in Australia, there were no children under the age of 18 years to whom the provisions of the Family Law Act 1975 (Cth) applied, and the ground for the application for a divorce order, namely that the marriage had irretrievably broken down, was proved. The court ordered that a divorce order be made, effective on 2 October 2022.

Orders