Talwar & Sarai
[2018] FamCAFC 152
•10 August 2018
FAMILY COURT OF AUSTRALIA
| TALWAR & SARAI | [2018] FamCAFC 152 |
| FAMILY LAW – APPEAL – DIVORCE – CLEARLY INAPPROPRIATE FORUM – Appeal from divorce order – Application for divorce filed by the husband in Australia – Marriage-related proceedings commenced by the wife in India – Where the primary judge found that Australia was not a clearly inappropriate forum to hear the divorce application – Proof of foreign law – Whether the primary judge erred by failing to find that the Australian proceedings were vexatious and oppressive – Failure to take into account an injunction restraining the husband from continuing proceedings in Australia – Where complete relief available in India but not Australia – Failure to properly take into account the effect of the divorce order on the wife where the divorce order would not be recognised in India – Appeal allowed. |
| Evidence Act 1995 (Cth) ss 174, 175 Code of Civil Procedure 1908 (India) s 13 Protection of Women from Domestic Violence Act 2005 (India) |
| Applicants in V 722 of 2000 v Minister for Immigration & Multicultural Affairs [2002] FCA 1059 CSR Ltd v Cigna Insurance Australia Ltd (1997) 189 CLR 345; [1997] HCA 33 Dane & Kabrig [2013] FamCAFC 113 Gronow v Gronow (1979) 144 CLR 513; [1979] HCA 63 Henry v Henry (1996) 185 CLR 571; [1996] HCA 51 Jasmit & Jasmit [2014] FCCA 972 Lan & Hao (No 2) (2017) FLC 93-795; [2017] FamCAFC 175 Navarro v Jurado (2010) 44 Fam LR 310; [2010] FamCAFC 210 Neilson v Overseas Projects Corporation of Victoria Ltd (2005) 223 CLR 331; [2005] HCA 54 Oceanic Sun Line Special Shipping Company Inc v Fay (1988) 165 CLR 197; [1988] HCA 32 Optus Networks Pty Ltd v Gilsan (International) Ltd [2006] NSWCA 171 Regie Nationale des Usines Renault SA v Zhang (2002) 210 CLR 491; [2002] HCA 10 Re Tang (2017) 52 VR 786; [2017] VSCA 171 Voth v Manildra Flour Mills Pty Ltd (1990) 171 CLR 538; [1990] HCA 55 |
| APPELLANT: | Ms Talwar |
| RESPONDENT: | Mr Sarai |
| FILE NUMBER: | CAC | 425 | of | 2017 |
| APPEAL NUMBER: | EA | 110 | of | 2017 |
| DATE DELIVERED: | 10 August 2018 |
| PLACE DELIVERED: | Sydney |
| PLACE HEARD: | Canberra |
| JUDGMENT OF: | Ainslie-Wallace, Ryan & Aldridge JJ |
| HEARING DATE: | 20 July 2018 |
| LOWER COURT JURISDICTION: | Federal Circuit Court of Australia |
| LOWER COURT JUDGMENT DATE: | 28 September 2017 |
| LOWER COURT MNC: | [2017] FCCA 2267 |
REPRESENTATION
| THE APPELLANT: | In person (by telephone from India) |
| COUNSEL FOR THE RESPONDENT: | Mr Abbass |
| SOLICITOR FOR THE RESPONDENT: | Hugh Ford Law |
Orders
The appeal is allowed.
The orders made by Judge Tonkin on 28 September 2017 are set aside.
The matter is remitted to the Federal Circuit Court of Australia for rehearing before a judge other than Judge Tonkin.
The Court grants to the appellant a costs certificate pursuant to the provisions of s 9 of the Federal Proceedings (Costs) Act 1981 (Cth) 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 in respect of the costs incurred by her in relation to this appeal.
The Court grants to the respondent a costs certificate pursuant to the provisions of s 6 of the Federal Proceedings (Costs) Act 1981 (Cth) 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 in respect of the costs incurred by the him relation to this appeal.
The Court grants to each party a costs certificate pursuant to the provisions of s 8 of the Federal Proceedings (Costs) Act 1981 (Cth) 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 each party in respect of such part as the Attorney-General considers appropriate of any costs incurred by each party in relation to the new trial granted by these orders.
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 Talwar & Sarai 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).
| THE FULL COURT OF THE FAMILY COURT OF AUSTRALIA AT CANBERRA |
Appeal Number: EA 110 of 2017
File Number: CAC 425 of 2017
| Ms Talwar |
Appellant
And
| Mr Sarai |
Respondent
REASONS FOR JUDGMENT
Introduction
On 28 September 2017, Judge Tonkin made a divorce order in proceedings between Ms Talwar (“the wife”) and Mr Sarai (“the husband”).
By a Notice of Appeal filed on 26 October 2017 the wife appeals from this order. She contends that her Honour erred in failing to find that Australia was a clearly inappropriate forum to deal with the dissolution of the parties’ marriage and that the proceedings should be stayed pending the resolution of proceedings between the parties in India.
In order to give context to the appeal, it is necessary to set out some background.
The parties are Indian nationals by birth, but the husband has lived in Australia for a number of years and is an Australian citizen.
In February 2013 while the husband was visiting India, the parties met and arranged to marry. He returned to India in August 2013 and later that month the parties were married in City B under the Hindu Marriage Act 1955 (India) (“the Hindu Marriage Act”).
The husband returned to Australia on 7 September 2013. That month, the wife completed an application for a partner visa so that she could join the husband in Australia.
On 31 December 2013 the husband wrote to the Department of Immigration and Border Protection (“the Department”) to withdraw his sponsorship of the wife’s partner visa. The husband contends that this is the date on which the parties separated.
The wife arrived in Australia on 20 May 2014, apparently in an effort to reconcile with the husband (at [35]). She attempted to locate the husband and was initially unsuccessful. Upon locating the husband and on visiting his home, the wife was not allowed to enter his property and was told to “go away”.
She subsequently became aware, on 29 May 2014, that the husband had contacted the Department for the cancellation of her partner visa and that she was required to leave Australia. The wife returned to India on 11 August 2014.
A number of proceedings have subsequently been instituted against the husband and his family in India. On 6 February 2015 the wife’s father made a criminal complaint with the police, alleging criminal breach of trust, cheating and that the husband and his family had unlawfully demanded a dowry from the wife’s family. Criminal charges pursuant to ss 34, 406, 420 and 498A of the Indian Penal Code 1860 (India) were brought sometime thereafter. Proceedings were also commenced against the husband and his family under the Dowry Prohibition Act 1961 (India) (“the Dowry Prohibition Act”). In those proceedings the wife asserts, amongst other things, that the husband and his family have unlawfully demanded a dowry from her and her family and have unlawfully retained gifts that were provided upon marriage. The wife has also filed a complaint against the husband under the Protection of Women from Domestic Violence Act 2005 (India) (“the Protection of Women Act”). None has been concluded.
The husband filed an Application for Divorce in the Federal Circuit Court of Australia on 10 March 2017. Although the wife was served with the application, she did not file a Response within the prescribed time limit (r 25.10, Federal Circuit Court Rules 2001 (Cth)).
On 10 April 2017 the wife filed an application in the Family Court of India seeking a declaration that the divorce order made in the Federal Circuit Court of Australia was null and void and that the husband be permanently restrained from proceeding with his divorce application in Australia. The husband instructed a lawyer to appear on his behalf in the proceedings.
The husband’s divorce application came before a registrar on 5 May 2017 but was adjourned due to there being inadequate evidence as to service of the application on the wife and as to the husband’s Australian citizenship.
The husband filed the required evidence and on 12 May 2017 the divorce application was heard and granted by a registrar.
On 18 May 2017 the wife forwarded a letter to the Canberra Registry which was received on 24 May 2017. The letter sought to challenge the court’s jurisdiction to hear the husband’s divorce application. On 31 May 2017 a registrar wrote to the wife and advised her that the divorce order would become final on 13 June 2017. She was advised that she was entitled to lodge a review of the decision of the registrar and that she could seek a stay of the divorce order. It should be pointed out that the information provided about a stay was wrong. The effect of s 55(3) of the Family Law Act1975 (Cth) (“the Act”) is that upon filing an application for a review, the provision operates so that the divorce order would not take effect, unless reversed or rescinded, until the expiration of one month from the date of finalisation of the appeal (review).
On 27 May 2017, the Principal Judge of the Family Court in City B made an injunction restraining the husband from continuing his proceedings in Australia.
The wife filed an Application for Review on 6 June 2017 and the matter came before the primary judge on 9 June 2017. At the time of the hearing before the primary judge, no application for divorce had been made by either of the parties in India. The divorce order was stayed from this date.
On 26 July 2017, an order for interim relief was made by the Metropolitan Magistrates Court (Mahila Court) granting the wife interim maintenance from the husband. The primary judge noted that the husband “appears to have engaged in these proceedings via an Indian legal representative” (at [43]).
The law
It is convenient first to set out the principles that apply to proceedings between the parties in different courts. If the court is satisfied that Australia is a clearly inappropriate forum in which to determine the proceedings, the court must stay them (Oceanic Sun Line Special Shipping Company Inc v Fay (1988) 165 CLR 197 (“Oceanic”) at 247 – 248; Voth v Manildra Flour Mills Pty Ltd (1990) 171 CLR 538 (“Voth”) at 564; Henry v Henry (1996) 185 CLR 571 (“Henry”)).
It will do so if it is satisfied that those proceedings are “oppressive” or “vexatious” or an “abuse of process”. The basis on which the court will do so was explained by the majority in CSR Ltd v Cigna Insurance Australia Ltd (1997) 189 CLR 345 (“CSR”) in the following manner at 391 – 392:
It is clear from the rationale for the exercise of the power to stay proceedings and, also, from the words “oppressive”, “vexatious” and “abuse of process” in Voth, in Oceanic Sun and in the earlier cases considered in OceanicSun , including St Pierre v South American Stores (Gath & Chaves) Ltd, that the power to stay proceedings on grounds of forum non conveniens is an aspect of the inherent or implied power which, in the absence of some statutory provision to the same effect, every court must have to prevent its own processes being used to bring about injustice.
The counterpart of a court's power to prevent its processes being abused is its power to protect the integrity of those processes once set in motion. And in some cases, it is that counterpart power of protection that authorises the grant of anti-suit injunctions. Thus, for example, if “an estate is being administered … or a petition in bankruptcy has been presented … or winding up proceedings have been commenced … an injunction [may be] granted to restrain a person from seeking, by foreign proceedings, to obtain the sole benefit of certain foreign assets”. Similarly, as Gummow J pointed out in National Mutual Holdings Pty Ltd v Sentry Corporation, a court may grant an injunction to restrain a person from commencing or continuing foreign proceedings if they, the foreign proceedings, interfere with or have a tendency to interfere with proceedings pending in that court.
(Footnotes omitted)
In addition to the inherent power to protect its own proceedings, a court may exercise its equitable jurisdiction to restrain unconscionable conduct or the unconscientious exercise of legal rights. The majority in CSR said at 393 – 394:
One well established category of case in which an injunction may be granted in the exercise of equitable jurisdiction is that involving proceedings in another court, including in a foreign court, which are, according to the principles of equity, vexatious or oppressive. Thus, it was said in Carron Iron Co v Maclaren that “[w]here [there is] … pending a litigation here, in which complete relief may be had, [and] a party to the suit institutes proceedings abroad, the Court of Chancery in general considers that act as a vexatious harassing of the opposite party, and restrains the foreign proceedings”.
In Société Aerospatiale, the Privy Council emphasised that the various cases decided in the nineteenth century with respect to vexation and oppression, including Peruvian Guano Co v Bockwoldt, have continuing significance for the grant of anti-suit injunctions. Those cases establish that the mere co-existence of proceedings in different countries does not constitute vexation or oppression. In particular, Peruvian Guano establishes that “double litigation [which] has no other element of oppression than this, that an action is going on simultaneously abroad, which will give other or additional remedies beyond those attainable in [the domestic forum]” does not amount to vexation or oppression.
More recently, in Bank of Tokyo Ltd v Karoon, Robert Goff LJ pointed out, correctly, in our view, although without specific reference to underlying equitable principle, that foreign proceedings are to be viewed as vexatious or oppressive only if there is nothing which can be gained by them over and above what may be gained in local proceedings. On the other hand, they are vexatious or oppressive if there is a complete correspondence between the proceedings or, in terms used in Carron Iron Co, if “complete relief” is available in the local proceedings.
(Footnotes omitted)
Thus, as the Full Court has observed in Lan & Hao (No 2) (2017) FLC 93-795 (“Lan & Hao”) at [39], the mere existence of proceedings in two different countries at the same time does not, of itself, constitute vexatious or oppressive conduct.
This accords with what was said by the majority in Henry at 590 – 591:
Parallel proceedings in another country with respect to the same issue may be compared with multiple proceedings with respect to the same subject matter in different courts in Australia. In Union Steamship Co of New Zealand Ltd v The Caradale, Dixon J observed of that latter situation that “[t]he inconvenience and embarrassment of allowing two independent actions involving the same question of liability to proceed contemporaneously in different courts needs no elaboration”. From the parties’ point of view, there is no less - perhaps, considerably more - inconvenience and embarrassment if the same issue is to be fought in the courts of different countries according to different regimes, very likely permitting of entirely different outcomes.
It is prima facie vexatious and oppressive, in the strict sense of those terms, to commence a second or subsequent action in the courts of this country if an action is already pending with respect to the matter in issue. And although there are cases in which it has been held that it is not prima facie vexatious, in the strict sense of that word, to bring proceedings in different countries, the problems which arise if the identical issue or the same controversy is to be litigated in different countries which have jurisdiction with respect to the matter are such, in our view, that, prima facie, the continuation of one or the other should be seen as vexatious or oppressive within the Voth sense of those words.
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.
(Footnotes omitted)
Thus the key issues that the court must consider when a party seeks the stay or dismissal of proceedings on the basis that the court is a clearly inappropriate forum are whether the controversy between the parties is the same in both jurisdictions, whether or not complete relief is available in the local jurisdiction and whether there is nothing to be gained in the overseas proceedings or whether, on the other hand, the overseas proceedings will give rise to additional or other remedies.
However, that is not the end of the consideration. The majority in CSR said at 400 – 401:
In cases such as the present, where different issues are involved in the local and foreign proceedings, albeit that the different proceedings arise out of the same sub-stratum of fact, the question is not whether the Australian court is a clearly inappropriate forum for the litigation of the issues involved in the Australian proceedings. Rather, the question must be whether, having regard to the controversy as a whole, the Australian proceedings are vexatious or oppressive in the Voth sense of those terms, namely, that they are “productive of serious and unjustified trouble and harassment” or “seriously and unfairly burdensome, prejudicial or damaging”.
(Footnote omitted)
In exercising its discretion, the court will also need to take into account the following further matters discussed by the majority in Henry at 592 – 593:
Some of the matters properly to be taken into account in a case such as the present emerge from what has already been written. To start with, no question arises unless the courts of the respective countries have jurisdiction with respect to the parties and their marriage. And if there is a question as to the jurisdiction of the foreign court, it may be necessary to adjourn the local proceedings to enable the foreign court to determine that question. However, if both have jurisdiction, it will be relevant to consider whether each will recognise the other's orders and decrees. If the orders of the foreign court will not be recognised in Australia, that will ordinarily dispose of any suggestion that the local proceedings should not continue. However, if the orders of the foreign court will be recognised in Australia, it will be relevant to consider whether any orders may need to be enforced in other countries and, if so, the relative ease with which that can be done. As well, it will be relevant to consider which forum can provide more effectively for complete resolution of the matters involved in the parties’ controversy.
Other considerations include the order in which the proceedings were instituted, the stage which they have reached and the costs that have been incurred. It will also be relevant to consider the connection of the parties and their marriage with each of the jurisdictions and to have regard to the issues on which relief might depend in those jurisdictions. Moreover, it will be relevant to consider whether, having regard to their resources and their understanding of language, the parties are able to participate in the respective proceedings on an equal footing. The list is not exhaustive. Rather, the question whether Australia is a clearly inappropriate forum is one that depends on the general circumstances of the case, taking into account the true nature and full extent of the issues involved.
(Footnote omitted)
It is important to note that this is not a balancing exercise. The majority in Regie Nationale des Usines Renault SA v Zhang (2002) 210 CLR 491 said at 520 – 521:
It was not a question of striking a balance between competing considerations. Rather, it was the task of the Renault companies as applicants on the motion to demonstrate that a trial in New South Wales would be productive of injustice, because it would be 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.
(Footnote omitted)
The appeal
The grounds of appeal set out in the Notice of Appeal are discursive and, indeed, can more accurately be described as submissions. The wife’s Summary of Argument identifies four grounds of appeal which can be summarised as follows:
·That the primary judge erred by failing to find that Australia was a clearly inappropriate forum, in circumstances where the “entire transaction” of the marriage has taken place in India and where the parties have no children or property in Australia (Ground 1);
·That her Honour erred by failing to take into account the fact that the wife had commenced marriage-related proceedings in India two and a half years before the husband filed his divorce application (Ground 2);
·That her Honour erred by failing properly to apply the principles laid out in Voth and Henry (Ground 3);
·That her Honour erred in finding that the making of a divorce order in Australia would not affect the proceedings in India (Ground 4).
At the hearing of the appeal the parties directed their oral submissions to the issues raised by these grounds.
It is clear that these grounds overlap and that each, in different ways, asserts the primary judge erred in her approach to the question of whether Australia was a clearly inappropriate forum to deal with the dissolution of the parties’ marriage. Rather than dealing with the grounds seriatim, then, we propose to focus on her Honour’s approach to this question.
Her Honour dealt with the issues before her under the following headings, which are consistent with Henry as quoted at [23] above:
·Is an Indian court likely to recognise an Australian divorce order?
·Are these proceedings sufficiently “oppressive and vexatious” to the wife to justify a stay?
·Mutual recognition of orders.
·Which forum can provide more effectively for the complete resolution of the parties’ matter?
·The order in which the proceedings were instituted and their current status.
·The connection of the parties and their marriage with each jurisdiction and the issues on which relief may depend in these jurisdictions.
·Whether the parties are able to participate in the respective jurisdictions on an equal footing.
We shall take each of these considerations in turn but dealing only with those to which submissions were directed.
Is an Indian court likely to recognise an Australian divorce order?
The first issue the primary judge considered was whether courts in India would recognise a divorce granted in Australia. Her Honour concluded at [64] that such recognition would be unlikely.
The primary judge noted at [55] that she was not provided with any expert evidence, but did receive detailed and lengthy written submissions as to the content and effect of Indian law on this issue. This led her Honour to discuss, by reference to the authorities and statutes referred to her by the parties, the effect of s 13 of the Code of Civil Procedure 1908 (India) which deals with the conclusivity of foreign judgments (at [53]). Her Honour also had regard to a decision of another judge of the Federal Circuit Court of Australia (Jasmit & Jasmit [2014] FCCA 972 (“Jasmit”)) in which findings as to foreign law were made after that judge, who had also not been provided with expert evidence, had conducted his own research (at [54]).
Those considerations led her Honour to adopt the following findings and conclusion:
62.The husband further submitted that recent Indian cases (Technip SA v SMS Holding (P) Lyd & Ors (2005) 5 SCC 465; M/s Alcon Electronics Pvt. Ltd. V. Celem S.A. of Fos 34320 Roujan, France & Anr. [2016] INSC 861; M/s International Woollen Mills Vs.M/s Standard Wool (U.K.) Ltd AIR 2001 SC 2134) have taken a more flexible view of the operation of section 13 of the CoCP that would accommodate the recognition of an Australian divorce order. Judge Riethmuller neatly dealt with an identical submission at paragraphs 32 – 35 of Jasmit (supra). I respectfully adopt His Honour’s argument in this regard.
63.Further, I note that in Mehra & Bose (No.3) [2013] FCCA 2273 (referred to in the husband’s written submissions), although Judge Monahan accepted the evidence of the expert witness that an Australian divorce order may be recognised in India, His Honour also accepted that “the making of a divorce order in Australia, or dissolution of marriage by an Indian Court, would not necessarily prevent the wife from pursuing claims for maintenance, return of dowry and child support in India.”.
64.In consideration of the above, I find that in the context of a divorce application, section 13 of the CoCP is likely to be determined in accordance with the principles set out in Rao (supra). Further, I am not satisfied that any of the three exceptions addressed in Roa (supra) apply to the present matter. Namely I do not find that the wife has submitted to the jurisdiction of this court nor that she has consented to the grant of relief by this court. Further, I am not satisfied of the existence of any ground in the [Hindu Marriage Act] analogous with that of “irretrievable breakdown” under s 48 of the [Family Law Act]. Therefore, I consider it unlikely that an Australian divorce order made with respect to the present matter would be recognised by the courts of India.
(Footnote omitted)
Foreign law is a question of fact and must be established by evidence. The immediate effect is that decisions of other judges about the law in other countries have no precedential value. In Neilson v Overseas Projects Corporation of Victoria Ltd (2005) 223 CLR 331 (“Neilson”), Gummow and Hayne JJ said at 370:
115The courts of Australia are not presumed to have any knowledge of foreign law. Decisions about the content of foreign law create no precedent. That is why foreign law is a question of fact to be proved by expert evidence. And it is why care must be exercised in using material produced by expert witnesses about foreign law. In particular, an English translation of the text of foreign written law is not necessarily to be construed as if it were an Australian statute. Not only is there the difficulty presented by translation of the original text, different rules of construction may be used in that jurisdiction.
(Footnote omitted)
Thus the primary judge erred by relying on previous decisions of other judges to identify the relevant law in India and to confirm her own view of it.
As we had said the primary judge did not have the benefit of expert evidence but rather, guided by the parties, conducted her own research into and evaluation of the relevant Indian statutes and authorities.
Clearly enough, a court is entitled to receive into evidence foreign statutes and law reports. Sections 174 and 175 of the Evidence Act1995 (Cth) (“the Evidence Act”) provide:
174Evidence of foreign law
(1)Evidence of a statute, proclamation, treaty or act of state of a foreign country may be adduced in a proceeding by producing:
(a)a book or pamphlet, containing the statute, proclamation, treaty or act of state, that purports to have been printed by the government or official printer of the country or by authority of the government or administration of the country; or
(b)a book or other publication, containing the statute, proclamation, treaty or act of state, that appears to the court to be a reliable source of information; or
(c)a book or pamphlet that is or would be used in the courts of the country to inform the courts about, or to prove, the statute, proclamation, treaty or act of state; or
(d)a copy of the statute, proclamation, treaty or act of state that is proved to be an examined copy.
(2)A reference in this section to a statute of a foreign country includes a reference to a regulation or by-law of the country.
175Evidence of law reports of foreign countries
(1)Evidence of the unwritten or common law of a foreign country may be adduced by producing a book containing reports of judgments of courts of the country if the book is or would be used in the courts of the country to inform the courts about the unwritten or common law of the country.
(2)Evidence of the interpretation of a statute of a foreign country may be adduced by producing a book containing reports of judgments of courts of the country if the book is or would be used in the courts of the country to inform the courts about the interpretation of the statute.
Speaking of the Victorian equivalent of these provisions, the Court of Appeal in Victoria said in Re Tang (2017) 52 VR 786 (“Re Tang”):
64.In the light of s 174 of the Evidence Act, expert evidence is not the only means by which the content of a foreign law can be proved to the satisfaction of an Australian court. It appears that, as the judge did not refer to that section, she was under the misapprehension that, in the absence of expert evidence, it was not open to her to make a finding on the content of the Chinese law relating to succession.
65.Given the risk of error — and perhaps even abuse — it is understandable why, in many cases, strict proof of foreign law, through expert evidence, may be required. However, this was not such a case. This is because the judge conducted her own research on the applicable Chinese law and the text of the Chinese law of succession that was yielded by that research coincided with the text upon which the applicant relied. In accordance with s 174(1)(b) of the Evidence Act, the judge should have been readily satisfied that the text was ‘a reliable source of information’ about the applicable Chinese law.
(Footnote omitted)
In that case, the primary judge had received into evidence an English translation of a text entitled “Chinese Law of Succession”.
In Optus Networks Pty Ltd v Gilsan (International) Ltd [2006] NSWCA 171 the Court of Appeal found that a foreign regulation was established by tendering a copy of it under s 174 of the Evidence Act 1995 (NSW). Its validity was then established by reference to a judgment of a superior court of that foreign jurisdiction. However, Hodgson JA (Beazley and McColl JJ agreeing) sounded the following note of caution:
87.In some cases, it could be necessary to prove by expert evidence that a book containing reports of judgments is a book which is or could be used in courts of the country concerned, as referred to in s.175 of the Evidence Act; but in the case of volumes of the Federal Reporter containing decisions of the United States Court of Appeals, this Court can take judicial notice that those books would be so used.
This caution is consistent with the comments of Gummow and Hayne JJ in Neilson, as quoted above. If caution is needed when dealing with expert evidence as to the content of foreign law, a fortiori, greater caution is required in dealing with evidence admitted under ss 174 and 175 when that evidence has not been explained by an expert.
We observe that these cases do not permit a judge to conduct his or her own research into the foreign law after the hearing has finished. At its highest, Re Tang supported the primary judge in that case conducting her own research to ascertain whether a text, which had been tendered, was a “reliable source of information” about Chinese law. We would not so readily support that approach. It is incompatible with the independent role of a judge to seek out the relevant facts of a case for him or herself, especially where such research is conducted after the close of the hearing and without the relevant material being drawn to the parties’ attention. Further, the exercise of the care noted in Neilson in relation to expert evidence surely precludes a judge, in effect, rendering themselves such an expert.
Finally, Re Tang is not directly relevant to the present case. There the trial judge conducted research to ascertain the accuracy of a text that had been admitted into evidence. Here there was no such text, only the research of the primary judge and that of a judge in other proceedings.
We doubt that such a course is necessary in any event. A party seeking to rely on a foreign law bears the onus of proving it. In the absence of expert evidence, the Court should proceed cautiously, but bearing in mind the following words of Ryan J in Applicants in V 722 of 2000 v Minister for Immigration & Multicultural Affairs [2002] FCA 1059:
33.However, it is not necessary for a court or tribunal to resort to expert evidence of that kind in order to make a finding as to the effect of a relevant law of a foreign country. If, for example, the text of a presumably relevant statute of that country or an authoritative statement in a legal text book or other authority appears to suggest with sufficient precision the effect of the law in question, the court or tribunal is entitled, in the absence of contradictory expert evidence, to make a finding accordingly (Evidence Act (Cth) 1995 s 174(1)).
The primary judge did not have a textbook or other authority that settled the law in question with sufficient precision. Rather, the primary judge determined what appears to be an unsettled point of Indian law, relying only upon her own research and the research of another judge. Such a course is not authorised by authority or by the provisions of the Evidence Act and, in doing so, her Honour erred.
The result of her Honour’s research, however, was the finding for which the wife had contended. The effect is that, ultimately, the error was not material to the outcome of the proceedings.
Are these proceedings sufficiently “oppressive and vexatious” to the wife to justify a stay?
Her Honour said:
65.Having found that it is unlikely that an Indian court will recognise a divorce order made in the present matter, I cannot agree that making such an order will have a “disastrous” effect on the wife’s position with respect to the current Indian litigation. It is now necessary to consider the other factors outlined by the High Court in Henry (supra), keeping in mind that the focus of the consideration is not which forum is “more appropriate” but rather, whether Australia is a “clearly inappropriate forum”.
We accept that the wife did not adduce evidence capable of establishing that the continuation of the proceedings would have a “disastrous” effect on the Indian litigation.
We observe, however, that this heading is, in fact, the ultimate issue and should have been addressed as a conclusion. The paragraph just quoted and its place in the reasons does tend to suggest that the primary judge gave the finding that the continuation of the Australian proceedings would not adversely affect the Indian proceedings undue, if not decisive, consideration. This is confirmed by the manner in which her Honour’s conclusion is expressed, to which we shall turn shortly.
This matter seems to have been accorded such weight because both the starting point and the conclusion of her Honour’s discussion were that the husband had a prima facie right to continue his proceedings in Australia.
It emerges from the primary judge’s conclusion at [73] and [74] as quoted below, and particularly her inclusion of [45] from Jasmit, that significant weight was placed upon the consideration that, as a resident of Australia, the husband is entitled to the benefits and protections of Australian law.
That law, however, consists also of the rules of private international law. Thus whilst it is true, as the primary judge recorded at [46], that “a party who has regularly invoked the jurisdiction of a competent court has a prima facie right to insist upon its exercise” (Oceanic at 241 per Deane J), that right will yield to a finding that the court is a clearly inappropriate forum. In Henry, the majority said at 588 – 589:
The passage may also be misleading in that it gives undue emphasis to the “prima facie right [of a party who has invoked the jurisdiction] to insist upon its exercise”, a consideration which appears to have been material in the decisions in this case. It was pointed out in the majority judgment in Voth that that prima facie right was common ground in the judgments of the majority in Oceanic Sun. And as such, it was doubtless taken into account in the decision to adopt the “clearly inappropriate forum” test rather than the Spiliada test. But there was also a statement to the effect that, in some cases, too much weight may have been given to “the notion that a proceeding regularly invoked provides a prima facie right to have the proceeding continue in that forum”.
There may be cases in which the notion of prima facie right has some role in determining whether or not a stay should be granted. For example, it may well be significant in what is otherwise a finely balanced contest. But there are also cases in which that notion can do little more than indicate that the onus lies on the party seeking a stay to establish that the chosen forum is clearly inappropriate. Indeed, there may be cases where the forum is so clearly inappropriate that the notion of prima facie right can have no real bearing on the matter, as, for example, if the cause of action arose in a country in which the parties reside or carry on business and their controversy can conveniently be litigated in that country.
(Footnotes omitted)
Mutual recognition of orders
Under this heading the primary judge said:
66.The wife submits that granting the divorce in Australia will likely lead to a situation where the parties are “considered as legally wedded in India while they are treated as divorced under the Australian law”. Although an Australian Court would likely recognise an Indian divorce order, obtaining such an order would require the “mutual consent” of the parties pursuant to section 13B of the [Hindu Marriage Act]. It is not clear from the wife’s material whether she would provide this and, in any event, to date she has not pursued a divorce in India on any grounds. Further, there are doubts surrounding the availability of any other grounds available to the parties under section 13 of the [Hindu Marriage Act] to satisfy the Court in India that a divorce order should be made. Whilst the conflict of the wife’s legal status of the parties’ marriage is an unfortunate outcome for the wife, it alone is not determinative of the matter.
(Footnote omitted)
We view the outcome to be considerably more than merely “unfortunate” for two reasons.
On 27 May 2017 the Principal Judge of the Family Court in City B made the following order:
In view of the facts and circumstances of the case, the said documents filed and the aforesaid judgement relied upon by the plaintiff, the defendant is directed not to proceed further in the matter at Australia as stated above for the order already passed by the Australian Court to become absolute.
This order was made after the registrar had made a divorce order but before the rehearing, which was a hearing de novo, was conducted by the primary judge. The primary judge referred to this order in passing, saying only “[t]he Court notes that at the time the injunctive order was made by the Court in India, the Registrar had already made the divorce order” (at [10]). The injunction cannot be dismissed in that way. At the time of seeking the divorce before the primary judge, the injunction was in force. In our view it restrained the husband from seeking any order to perfect a divorce order, including agitating for such an order. The reference to the registrar’s divorce order is irrelevant because that order, in the light of the review application, was of no effect.
We consider that in prosecuting the rehearing, the husband was in breach of that injunction.
Her Honour referred to the injunction, but only in an introductory paragraph setting out the wife’s contentions. It was not referred to again and clearly not taken into account.
The injunction is, in our opinion, very significant. It demonstrates that the Family Court in India regarded the husband’s proceedings in Australia as being contrary to the proper and orderly conduct of the proceedings in India.
Further, while the injunction did not purport to, and could not, bind an Australian judge, it did bind the husband. Judicial comity required that regard be had to the injunction and consideration given to according it significant weight and respect.
It follows that the primary judge erred by failing to take it into account at all.
We turn then to the effect of her Honour’s findings, which is that the husband will be divorced in Australia but that the wife will not be divorced in India. The primary judge described this as “an unfortunate outcome for the wife” but considered that “it alone is not determinative of the matter” (at [66]).
In Navarro v Jurado (2010) 44 Fam LR 310 (“Navarro”) at 360, Ryan J took a different view. Her Honour said:
271.The focus of the husband’s submission appeared to be upon the preliminary finding required before a divorce order in Costa Rica may issue. In my view, it is the complete effect of the application to which attention should be drawn. That is, an Australian divorce order would change the parties’ status in Australia from married spouses to being divorced. Because the Australian divorce order would not be recognised in Costa Rica, the wife would remain married to the husband while he was, as he said he would, in all likelihood simultaneously to be married to his Australian wife. This situation would continue until the wife’s application for divorce in Costa Rica was granted. Such an outcome would be productive of serious mischief. Even if the husband chose not to remarry, that he would be divorced and the wife remain married to him until her divorce application was granted is equally seriously mischievous. This was compelling evidence of injustice to the wife in the Voth sense.
In a separate judgment, Thackray J regarded this as a significant matter (at [85] and [86]).
Counsel for the husband submitted that the finding of the primary judge was supported by authority and referred us to Dane & Kabrig [2013] FamCAFC 113 (“Dane”). In that case, Strickland J found that the fact that an Australian divorce would not be recognised in India was not sufficient to prevent the Australian divorce proceedings from continuing. However, the facts there were very different. The parties had arrived in Australia in 2004 as a couple. Both had become Australian citizens and neither had any plans to return to India.
In the present case, the wife was living in, and would continue to live in, India. There was no prospect of her coming to live in Australia and no reason for her to do so. The lack of a divorce in India would have a significant and adverse impact on her life. That was not the position in Dane.
The outcome of being divorced in Australia but not in India where the wife lives is, in our opinion, such an inappropriate result when there are proceedings on foot in India which avoid that dichotomy. As a factor to be taken into account it supports a finding that the Australian proceedings are “productive of serious and unjustified trouble and harassment” and “seriously and unfairly burdensome, prejudicial or damaging” (Oceanic at 247). It cannot be dismissed as merely unfortunate.
Which forum can provide more effectively for the complete resolution of the matter?
The wife submitted that Australia was an inappropriate forum, in part because complete relief was not available in Australia. This was a reference to the wife’s proceedings under the Dowry Prohibition Act for the return of wedding gifts, for maintenance and under the Protection of Women Act.
Her Honour said:
67.The Australian proceedings are for divorce only whilst the Indian proceedings appear to raise different issues, including property and criminal matters. Importantly, the Indian proceedings currently on foot are not divorce proceedings.
68.Given that in the current circumstances the Indian court is unlikely to recognise the divorce order, I see no bar to the wife continuing to prosecute the Indian proceedings notwithstanding a divorce order under Australia law has been made. The Australian courts are in a position to effectively finally resolve the proceedings before the Court, without affecting the matters raised by the wife in the Indian proceedings.
Of course there is no bar to the proceedings continuing in India, but the question is whether complete relief was available (as we say below, we consider that it was) and whether the maintenance of the two sets of proceedings was oppressive in the Voth sense. All of the issues before the parties could be resolved in India but only the divorce, and possibly maintenance, could be resolved in Australia.
Her Honour therefore misdirected herself as to the nature of this consideration.
The connection of the parties and their marriage with each jurisdiction and the issues on which relief may depend in those jurisdictions
The wife submitted that the primary judge erred by not taking into account, in particular, the participation of the husband in the proceedings in India and by finding that a divorce was not available in India.
The primary judge said:
70.Notwithstanding the parties married in India, the husband is and was at the time of the marriage an Australian citizen. He resides in Australia permanently. The wife is an Indian citizen and resides in India permanently.
71.As I have determined, a divorce order may be made in Australia on the ground of “irretrievable breakdown” of the marriage. The parties are unlikely to have an avenue to secure a divorce under s 13 of the [Hindu Marriage Act] on the facts before me.
The primary judge noted that there were currently no proceedings on foot in India for a divorce (at [45]). Her Honour found that, on the facts before the court, either party would be “unlikely to have an avenue to secure a divorce order under s 13 of the [Hindu Marriage Act]” (at [71]).
It is not clear to us why this is so.
As we have recorded, the husband has participated in the proceedings in India for over two years. We did not understand it to be contentious that either party could have sought a divorce in these proceedings, if so entitled. Rather, the focus was on whether the grounds for making such an application existed.
The relevant provisions of the Hindu Marriage Act were placed before her Honour, albeit as annexures to submissions and not exhibits, but no point was taken about this. We are thus able to have regard to them, using the approach we have described earlier.
Section 13(1)(i-b) of the Hindu Marriage Act provides:
Section 13 Divorce
(1) Any marriage solemnized, whether before or after the commencement of this Act, may, on a petition presented by either the husband or the wife, be dissolved by a decree of divorce on the ground that the other party –
…
(i-b) has deserted the petitioner for a continuous period of not less than two years immediately preceding the presentation of the petition …
Desertion is defined in that section as:
the desertion of the petitioner by the other party to the marriage without reasonable cause and without the consent of or against the wish of such party, and includes the wilful neglect of the petitioner by the other party to the marriage …
In the absence of any contradictory expert evidence, the fact that the husband left India on 7 September 2013 and by 31 December 2013 withdrew his sponsorship of the wife’s partner visa suggests to us that this ground, at least, was available and her Honour erred by finding to the contrary. The primary judge did not explain her reasoning behind that finding.
This was a significant consideration as appears from her Honour’s ultimate conclusion:
73.I am not satisfied that Australia is “clearly inappropriate forum” in which to determine the husband’s divorce application. In line with the wife’s own submissions, drawing on the principles explained in Rao (Supra), an Australian divorce order made on the ground of “irretrievable breakdown” is unlikely to be recognised in India. Therefore, it is difficult to see how any such order could negatively affect the wife’s interests in the current Indian litigation.
74.By way of conclusion, I respectfully adopt the remarks of Judge Riethmuller in Jasmit (supra), which mirror the circumstances of the present matter:
“[43] The husband has a right to a divorce in Australia, without having to prove fault or impairment of the other party, simply on the grounds of irretrievable breakdown of the marriage and separation for a period of 12 months. The evidence in this case shows the parties effectively separated when the wife returned to India.
[44] Under s.13 of the Hindu Marriage Act it does not appear that the husband has a prima facie basis to obtain a divorce, and the wife opposes a divorce.
[45] Thus, the remedy of divorce appears to be available to the husband only in Australia. As a resident of Australia he is entitled to the benefits and protections of Australian law.”
Thus, that conclusion is based upon an erroneous premise.
It follows that we are of the view that a divorce is available in India, at least on the application of the wife. Thus the consideration arises of staying the Australian proceedings to see what course is taken in India. The possibility exists of any such a stay being granted upon the condition that the wife seek a divorce in the Indian proceedings.
The husband strongly submitted that the Australian proceedings could be stayed only if there were parallel proceedings in India – that is, if there were divorce proceedings on foot in India. In doing so, he referred in particular to Henry and to Navarro.
Before we turn to these cases, it is clear from what we have already written that we do not accept this submission, as it is sufficient that complete relief – in this case, a divorce – be available in the foreign proceedings as opposed to actively being sought.
In Henry, the majority clearly regarded disputes with respect to property, maintenance and the custody of children to be “ordinarily … aspects of an underlying controversy with respect to the marital relationship” (at [37]). As there were proceedings already on foot in India as to aspects of the marital relationship, we consider that this passage supports the wife’s contention that the Australian proceedings are vexatious and oppressive.
We accept that in Lan & Hao it was said that in some cases the Court can look beyond a general description of the proceedings and look to see whether these two proceedings dealt with the same controversy and whether complete relief was available in one jurisdiction (at [63], see also [55] – [62]).
This is, in our opinion, consistent with the following passage in Henry at 590 – 591:
Foreign proceedings usually fall for consideration in a context in which they involve the same or related factual issues as those involved in the local proceedings, but not the same legal issue and, perhaps, not the same parties. Even in cases of that kind it may sometimes be appropriate to grant a temporary stay of the local proceedings to allow the factual issues to be determined in the other jurisdiction. There are more compelling considerations in favour of a stay of the local proceedings if, as can happen, there are proceedings in another country which has jurisdiction to entertain those proceedings and the proceedings are between the same parties and with respect to the same issue or controversy.
Parallel proceedings in another country with respect to the same issue may be compared with multiple proceedings with respect to the same subject matter in different courts in Australia. In Union Steamship Co of New Zealand Ltd v The Caradale, Dixon J observed of that latter situation that “[t]he inconvenience and embarrassment of allowing two independent actions involving the same question of liability to proceed contemporaneously in different courts needs no elaboration.” From the parties’ point of view, there is no less – perhaps, considerably more – inconvenience and embarrassment if the same issue is to be fought in the courts of different countries according to different regimes, very likely permitting of entirely different outcomes.
It is prima facie vexatious and oppressive, in the strict sense of those terms, to commence a second or subsequent action in the courts of this country if an action is already pending with respect to the matter in issue. And although there are cases in which it has been held that it is not prima facie vexatious, in the strict sense of that word, to bring proceedings in different countries, the problems which arise if the identical issue or the same controversy is to be litigated in different countries which have jurisdiction with respect to the matter are such, in our view, that, prima facie, the continuation of one or the other should be seen as vexatious or oppressive within the Voth sense of those words.
(Footnotes omitted)
We therefore do not consider that Henry supports the husband’s submission.
In Navarro the wife and child lived in Costa Rica, their place of origin, having returned after some years of living with the husband in Australia.
On 2 May 2007 the wife filed a divorce application in Costa Rica. The husband responded by filing a divorce application in Australia on 24 October 2007. He returned to Costa Rica in November 2007 to spend time with the child. Whilst there, he authorised a local to represent him in the wife’s divorce application. He also applied for a legal separation, rights to visit their son and other matrimonial orders.
An annexure to the wife’s application, which made no challenge to the court’s jurisdiction, was filed on 5 August 2008.
Thus, there were, as submitted by the husband, parallel proceedings for a divorce. Consistently with Voth, prima facie those proceedings were vexatious and oppressive. Navarro, however, does not deal with the factual situation in the present case and it does not support the husband’s argument. As we have discussed, the High Court has made it plain that proceedings may be vexatious and oppressive, even if they do not involve precisely the same issue, or even the same parties, as the foreign proceedings.
For these reasons we consider that the primary judge erred.
Conclusion
Thus, we consider that the exercise of the primary judge’s discretion miscarried in the following ways:
·on the face of s 13 of the Hindu Marriage Act, a divorce was available in India, at least on the application of the wife;
·complete relief was therefore available to the parties in the Indian proceedings;
·undue emphasis was placed on the husband’s “prima facie right” to proceed with his proceedings in Australia;
·the injunction against the husband continuing with his divorce application was ignored; and
·the primary judge did not have proper regard to the effect of her orders upon the wife, who would not be divorced in India.
We are conscious that the last bullet point, and possibly the third, could be regarded as complaints as to the weight given to these factors. Such challenges face a high bar (Gronow v Gronow (1979) 144 CLR 513). If they had been the only basis for challenging her Honour’s reasons then consideration would need to have been given to whether the weight given was outside the reasonable exercise of discretion. Obviously, we regard the last bullet point as a matter of great weight, contrary to the primary judge. The third bullet point might more accurately be categorised as a point of law.
However, given the other matters raised, we do not propose to embark upon that exercise. The remaining bullet points indicate that the discretion miscarried and that it must be re-exercised. Counsel for the respondent accepted that the appropriate course was for a judge of the Federal Circuit Court to undertake that task. We agree as further evidence is likely to be called.
It follows that the appeal must be allowed and the matter remitted for rehearing.
Costs
Neither party sought an order for costs in the event that the appeal is allowed. We are satisfied that there was error on the part of the primary judge and that certificates should issue under the Federal Proceedings (Costs) Act 1981 (Cth).
We are conscious that the wife has not incurred any legal expenses in Australia but has done so in India. We are unable to find any authority that bears upon this question. We are inclined to the view that we are not thereby precluded from issuing a certificate, but note it will be up to the Attorney-General to exercise his discretion on the issue as to whether a payment will be made.
I certify that the preceding one hundred and two (102) paragraphs are a true copy of the reasons for judgment of the Honourable Full Court (Ainslie-Wallace, Ryan & Aldridge JJ) delivered on 10 August 2018.
Legal associate:
Date: 10 August 2018
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