Talwar & Sarai

Case [2018] FamCAFC 152

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
Family Law Act 1975 (Cth) s 55
Federal Proceedings (Costs) Act 1981 (Cth)
Federal Circuit Court Rules 2001 (Cth) r 25.10

Code of Civil Procedure 1908 (India) s 13
Dowry Prohibition Act 1961 (India)
Hindu Marriage Act 1955 (India) s 13
Indian Penal Code 1860 (India)

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

  1. The appeal is allowed.

  2. The orders made by Judge Tonkin on 28 September 2017 are set aside.

  3. The matter is remitted to the Federal Circuit Court of Australia for rehearing before a judge other than Judge Tonkin.

  4. The Court grants…

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Talwar & Sarai [2018] FamCAFC 152
Case
[2018] FamCAFC 152
Decision Date

CaseChat Overview and Summary

Talwar & Sarai was an appeal against the determination of a divorce application filed by the husband in Australia. The wife had initiated marriage-related proceedings in India. The primary judge concluded that Australia was not an inappropriate forum to entertain the husband's application for divorce. The husband argued that the primary judge had erred in not finding that the Australian proceedings were vexatious and oppressive, and in not considering an injunction restraining him from continuing the proceedings in Australia. He also contended that complete relief was available in India, but not in Australia, and that the divorce order would not be recognised in India, thereby having an adverse effect on the wife.

The court considered whether the primary judge erred in failing to find that the Australian proceedings were vexatious and oppressive, and in not properly taking into account the effect of the divorce order on the wife. The court held that the primary judge had erred in her determination. The appeal was allowed, and the orders made by Judge Tonkin on 28 September 2017 were set aside. The matter was remitted to the Federal Circuit Court of Australia for rehearing before a judge other than Judge Tonkin. The Court granted to the appellant a costs certificate, the respondent a costs certificate, and each party a costs certificate pursuant to the Federal Proceedings (Costs) Act 1981 (Cth).

The final orders were that the appeal was allowed, the orders made by Judge Tonkin on 28 September 2017 were set aside, the matter was remitted to the Federal Circuit Court of Australia for rehearing before a judge other than Judge Tonkin, and the Court granted to the appellant, the respondent, and each party a costs certificate pursuant to the Federal Proceedings (Costs) Act 1981 (Cth).

Orders

Orders of the court

1.

The appeal is allowed.

2.

The orders made by Judge Tonkin on 28 September 2017 are set aside.

3.

The matter is remitted to the Federal Circuit Court of Australia for rehearing before a judge other than Judge Tonkin.

4.

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.

5.

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.

6.

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.

Background

Background to the litigation

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Evidence

Evidence Before The Court

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”.

Decision

Reasons for decision

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Ratio Decidendi

Legal Principle Established

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