TEDJA & SONY
[2015] FamCAFC 13
•16 February 2015
FAMILY COURT OF AUSTRALIA
| TEDJA & SONY | [2015] FamCAFC 13 |
| FAMILY LAW – APPEAL – NOTICE OF APPEAL – DIVORCE ORDER - FORUM – Where the husband seeks that a divorce order be set aside on the basis of Australia being an inappropriate forum – Where many of the grounds of appeal are either not grounds of appeal or not proper grounds of appeal – Where some of the grounds of appeal read generously and at their highest can be treated as challenging the exercise of discretion by the trial judge – Where the trial judge was cognisant of the factors that needed to be addressed – Where the trial judge appropriately took into account the stage the proceedings had reached in each forum – Where there was no justification to suggest that the trial judge did anything other than he was required to in accordance with the law – Where the trial judge was not “plainly wrong” in the exercise of his discretion – Where there is no merit in the grounds of appeal – Appeal dismissed. FAMILY LAW – APPEAL – APPLICATION IN AN APPEAL – FURTHER EVIDENCE – Where the husband seeks to admit further evidence – Where the husband has not demonstrated how the updating evidence would render “erroneous” the orders under appeal or how it would have “produced a different result if it had been available at the trial” – Where the trial judge was well aware of the overseas proceedings and the husband’s intention to pursue those proceedings regardless – Where there is no basis to receive the further evidence – Application dismissed. FAMILY LAW – APPEAL – NOTICE OF APPEAL – COSTS – Where the wife seeks an order for costs – Where there are clear circumstances justifying an order for costs in the wife’s favour – Husband to pay the wife’s costs of the appeal as assessed in default of agreement. |
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| APPELLANT: | Mr Tedja | |||
| RESPONDENT: | Ms Sony |
| FILE NUMBER: | MLC | 7099 | of | 2012 |
| APPEAL NUMBER: | SOA | 12 | of | 2014 |
| DATE DELIVERED: | 16 February 2015 |
| PLACE DELIVERED: | Adelaide |
| PLACE HEARD: | Melbourne |
| JUDGMENT OF: | Strickland J |
| HEARING DATE: | 7 July 2014 |
| LOWER COURT JURISDICTION: | Federal Circuit Court |
| LOWER COURT JUDGMENT DATE: | 28 January 2014 |
| LOWER COURT MNC: | [2014] FCCA 275 |
REPRESENTATION
| THE APPELLANT: | In Person |
| COUNSEL FOR THE RESPONDENT: | Mr Glass |
| SOLICITOR FOR THE RESPONDENT: | Women’s Legal Service Victoria |
Orders
The application in an appeal filed on 13 May 2014 be dismissed.
The appeal be dismissed.
The husband pay the costs of the wife of and incidental to the appeal, such costs to be assessed in default of agreement.
IT IS NOTED that publication of this judgment by this Court under the pseudonym Tedja & Sony has been approved by the Chief Justice pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth).
| IN THE APPELLATE JURISDICTION OF THE FAMILY COURT OF AUSTRALIA AT MELBOURNE |
Appeal Number: SOA 12 of 2014
File Number: MLC 7099 of 2012
| Mr Tedja |
Appellant
And
| Ms Sony |
Respondent
REASONS FOR JUDGMENT
Introduction
By Notice of Appeal filed on 14 February 2014 Mr Tedja (“the husband”) seeks to appeal against the order for divorce made by Judge Burchardt on 28 January 2014.
The respondent is Ms Sony (“the wife”), and she opposes the appeal.
On 7 May 2014 I conducted a directions hearing to prepare the matter for hearing and one of the orders I made was as follows:
…
2.On or before the close of business on Wednesday 4 June 2014 the [husband] obtain a copy of the transcript of the hearing before Judge Burchardt on 28 January 2014 and provide copies of such transcript to the Court and to the [wife].
…
I also made the usual orders for the husband and the wife to file and serve any application to lead further evidence.
At the conclusion of that directions hearing the husband foreshadowed bringing an application seeking that I disqualify myself from hearing either the appeal, or any future matter that may be before this Court. On 9 May 2014 he filed such an application supported by an affidavit.
On 13 May 2014 the husband filed an application in an appeal, together with an affidavit in support, seeking to lead further evidence, which application was listed to be heard at the commencement of the hearing of the appeal.
On 19 May 2014 the husband filed an application in an appeal, together with a financial statement and an affidavit in support, seeking an order that the Court pay for the cost of the transcript of the hearing on 28 January 2014.
On 23 June 2014 I heard the application seeking my disqualification, and the application seeking that the Court pay the cost of the transcript of the January 2014 hearing. The husband and counsel for the wife attended that hearing by way of telephone link. I delivered ex tempore reasons for judgment dismissing both applications, noting that no order for costs was sought by the wife in relation to either of them (see Tedja & Sony (No 2) [2014] FamCAFC 111).
In relation to the need for transcript, in those reasons I pointed out to the husband that if he did not intend to rely on anything said at the hearing as demonstrating that the trial judge erred, then there was no need for transcript. As it transpired the husband did not obtain the transcript.
Background
The husband was born in Indonesia in 1970 and was aged 43 years at the time of hearing before the trial judge.
The wife was born in Indonesia in 1978 and was aged 35 years at the time of that hearing.
The parties were married in Indonesia in 2000.
There are two children of the relationship namely, A born in 2001 and B born in 2006. The children live with the wife and spend time with the husband.
The parties moved to Australia in 2006 and lived in Melbourne where the husband had gained employment.
In 2008 the husband applied for a General Skilled Migration Visa, or permanent resident visa, which application included the wife and the children as his dependents.
In early 2009 the parties returned to Indonesia and the husband worked there for an Australian Government Department as a client services officer.
In 2010 the parties and the children were granted permanent resident visas.
In 2011 the parties returned to live in Melbourne. The wife says that she has lived in Australia ever since and has no plans to return to live in Indonesia.
The wife says that the parties separated in May 2012; the husband says separation took place in June 2012.
On 6 May 2013 Judge Connolly made final orders dealing with children’s issues.
On 14 October 2013 the husband filed an application in an appeal seeking an extension of time to appeal the orders made on 6 May 2013.
On 26 February 2014 I heard and dismissed that application on the basis that there was no adequate reason proffered by the husband for his failure to file a Notice of Appeal within the requisite time period, the appeal had no merit, and the interests of justice required that the application be dismissed (see Tedja & Sony [2014] FamCAFC 35).
On 15 August 2013 the wife filed a Divorce Application.
On 26 August 2013 the husband filed for divorce in Indonesia
On 12 September 2013 the husband filed a Response opposing the wife’s application for divorce on the basis that the parties were married in Indonesia, and that given the parties were Indonesian citizens, the relevant civil registry in Indonesia would not register an Australian divorce when there was an application for divorce pending in Indonesia.
On 28 January 2014 the wife filed an affidavit in support of her case.
On 28 January 2014 Judge Burchardt heard the contested divorce application, delivered ex tempore reasons for judgment, and granted the divorce (effective from 1 March 2014).
The reasons for judgment delivered on 28 January 2014
The trial judge commenced his reasons for judgment by addressing the question of the jurisdiction of the Court under ss 39(3)(b) and (c) of the Family Law Act 1975 (Cth) (“the Act”). It was common ground that the wife had been living in Australia since at least August 2011, on a “permanent resident visa” (at [1]), and his Honour was also satisfied that the wife was domiciled in Australia.
His Honour then found that the parties had been separated for one year before proceedings for divorce were instituted, and that “arrangements [were] in place that satisfy the circumstances of section 55A of the Act in relation to the children” (at [2]).
His Honour then set out what he believed the husband’s real challenge to be, namely, “that Indonesia is the appropriate place and the appropriate court forum for this matter to be determined” (at [4]). His reasons for that were first, that “the parties are Indonesian citizens” (at [5]); secondly, that a divorce granted in Australia would not be “registered in Indonesia” (at [5]) while an application in Indonesia has not been determined; thirdly, the matter in Indonesia will “proceed in any event”, according to the husband; and fourthly, the legal systems of the two countries are different (at [7]).
His Honour then set out at [9] relevant extracts from the High Court decision in Henry v Henry (1996) 185 CLR 571, and found that the proceedings had “been regularly entered in Australia”, the application did “not arise in isolation” and followed “very extensive proceedings before Judge Connolly” which dealt with “all the matters the parties then felt it appropriate to agitate including children’s issues”, whereas the proceedings in Indonesia were “at an early and indeterminate stage in regards to all issues including children” (at [10]).
His Honour was prepared to assume the correctness of the husband’s assertion that any order of the Court in Australia will not be recognised in Indonesia. However, his Honour accepted the wife’s evidence that she had been living in Australia “for some time and proposes to remain in Australia where she has permanent residency” (at [11]). Thus, although both parties remain Indonesian citizens, “there is a very real connection on the part of the wife and the children with Australia” (at [12]).
With regard to the proceedings in Indonesia his Honour noted that they may well “continue to finality” (at [13]), and it was up to the wife what position she took in relation to them. However, the husband, the wife and the children were all in Australia and were subject to orders made by the Federal Circuit Court of Australia as to their children.
In all the circumstances his Honour found that Australia was “not a clearly inappropriate place in which to have the matter heard and determined in light of all the relevant circumstances” (at [14]), and granted the divorce.
Grounds of appeal
In his Notice of Appeal filed on 14 February 2014 the husband set out his grounds of appeal as follows:
1.A legal marital status of “Married and Divorced simultaneously” just never makes sense.
2.Respondent lodged for an Application to Divorce on 15/8/2013 with initial hearing on 26 September 2013 and defended hearing on 05/02/2014;
3.During the hearing, Judge Burchardt was implementing Henry’s Law to determine the applicable or proper jurisdiction for this matter as both Appellant and Respondent are Indonesian citizen and Australian permanent residents, too.
4.The judge determined that both Indonesia and Australia are the correct jurisdiction to handle any legal matter against both Appellant and Respondent.
5.However, in this matter, the Judge, at his sole discretion, decided to proceed with Application for Divorce by the Respondent although there is also an ongoing divorce process in Indonesia;
6.The Judge ignored the fact that the majority of time when both Appellant and the Respondent are married are outside Australia;
7.The Judge ignored the facts that almost all of evidence and eye-witness pertaining to this and other related proceedings are in Indonesia including those to confirm the Respondent’s compulsive lying and violent behaviour towards the Appellant and both children, including when the Respondent attempted to murder the baby in her womb;
8.The Judge ignored the fact that none of the courts in Australia (Magistrates Court, Federal/Family Court) has ever initiated a comprehensive forensic investigation, such as use of polygraph or psychological assessment, despite the allegation and eye-witness testimony or affidavits confirming that the Respondent has been consistently perjure (sic) or lying in various court proceedings.
9.The Judge ignored the explanation that the court in Indonesia will assess the divorce proceedings completely including presence of evidence and eye-witness accounts as part of natural justice as opposed to recklessly using “balance of probability” to simplify a complicated matter;
10.The Judge simply ignored the fact that the Respondent has committed a clear Contempt of Court in Indonesia by ignoring compulsory invitation to attend the hearings in Jakarta; hence the court in Jakarta will eventually make orders without the presence of the Respondent, including divorce, property, and custody orders;
11.The Judge understood the explanation that there is no way the Civil Registry in Jakarta, Indonesia, will accept registration for overseas divorce order when there is already an ongoing divorce proceeding in Jakarta, Indonesia, on both the Appellant and the Respondent Indonesian citizens.
12.The Judge ordered that the Application for Divorce by the Respondent is granted;
13.Because of this fundamental blunder, both the Applicant and the Respondent are currently having a marital status of “Married and Divorced simultaneously”, “It depends”, “To be determined”, “Others”, “Not Applicable”, or “It’s Complicated”;
14.By imposing such marital status to both the Applicant and the Respondent, the Judge clearly violated the very basic human/legal rights of both the Applicant and the Respondent, including the rights to have a clear, concise, and determinant legal/marital status;
15.The order is now only adding more complexity to already complex proceedings and only showing inefficiency in using public resources by creating another dispute;
16.Furthermore, imposing a decision that never makes sense will eventually jeopardise the credibility of the honourable Family Court and Federal Court in particular, and the Australian legal system in general;
17.An order that not only significantly altered a definite legal marital status into a disputable status but also violated the very basic legal rights of the Appellant and the Respondent is simply a clear example of error in implementing justice principle.
These “grounds of appeal” comprise grounds that cannot be said to be grounds of appeal at all (Grounds 2, 3, 11 and 12), grounds that are not proper grounds of appeal (Grounds 1, 4, 13, 16) and grounds that read generously and at their highest can be treated as challenging the exercise of discretion by the trial judge (Grounds 5, 6, 7, 8, 9, 10, 14, 15, and 17).
I observe that although the husband filed a written summary of argument, and made oral submissions at the hearing, they did not bring any greater clarity to the grounds of appeal, or elevate more of them to proper grounds of appeal requiring consideration.
I will shortly attempt to address as best I can those grounds of appeal that go to the exercise of his Honour’s discretion. That can best be done on a global rather than a discrete basis.
Order sought
The husband sought the following order:
1.I am seeking an order that the honourable Court hereby completely set aside or cease the order that was made on 28 January 2014 in the Federal Circuit Court of Australia at Melbourne (File Number: (P)MLC 7099/2012) before Judge Burchardt as attached.
Application in an appeal
On 13 May 2014 the husband filed an application in an appeal and supporting affidavit seeking to lead further evidence. After reading that affidavit it was apparent that with the exception of paragraph [17], which provided an update on the Indonesian proceedings, the remainder of that document was in the form of additional submissions to the summary filed by the husband on 27 May 2014.
After discussion between bench and bar it was agreed that paragraphs [21]-[27], and [38]-[40], were in the category of additional submissions and would be relied upon by the husband on that basis, together with his summary of argument filed on 27 May 2014.
As to paragraph 17 of the affidavit, as I say, that provides an update as to the progress of the Indonesian proceedings. It tells me that the hearing “is … reaching the phase of second public gazette announcement”.
In CDJ v VAJ (1998) 197 CLR 172, the High Court discussed the circumstances in which an appellate court may exercise its discretion to admit further evidence. At [109] McHugh, Gummow and Callinan JJ said this:
One consideration in construing s 93A(2) is its remedial nature. Its principal purpose is to give to the Full Court a discretionary power to admit further evidence where that evidence, if accepted, would demonstrate that the order under appeal is erroneous. The power exists to facilitate the avoidance of errors which cannot be otherwise remedied by the application of the conventional appellate procedures. …
Their Honours then said this at [111]:
… Nor can the availability of further evidence relevant to the issues in the appeal be treated as equivalent to a ground of appeal, proof of which prima facie entitles the appellant to a new trial. The power to admit the further evidence exists to serve the demands of justice. Ordinarily, where it is alleged that the admission of new evidence requires a new trial, justice will not be served unless the Full Court is satisfied that the further evidence would have produced a different result if it had been available at the trial. Without that condition being satisfied, it could seldom, if ever, be in the interests of justice to deprive the respondent of the benefit of the orders made by the trial judge and put that person to the expense, inconvenience and worry of a new trial.
The husband has not demonstrated how this updating evidence would render “erroneous” the orders under appeal, or how it would have “produced a different result if it had been available at the trial”. As I say elsewhere in these reasons, his Honour was well aware of the proceedings in Indonesia, and of the husband’s intention to pursue them regardless. Thus, there is no basis to receive this further evidence and the application must be dismissed.
Discussion
As is apparent, there is no challenge by the husband to his Honour’s findings that the Federal Circuit Court of Australia has the jurisdiction to hear and determine the application for divorce, and that the one ground of divorce had been established. Accordingly, the issue before his Honour was one of forum, given that jurisdiction does apparently exist in the courts of Indonesia to deal with proceedings for divorce between the husband and the wife.
It is beyond doubt that the principles that apply in addressing this issue are those emanating from the High Court decision of Henry, and the question to be asked is whether Australia is a “clearly inappropriate forum”.
Determining that question entails an exercise of discretion by the trial judge, and the following extract taken by the trial judge from the headnote in the authorised report, and which summarised and quoted parts of the joint judgment of Dawson, Gaudron, McHugh and Gummow JJ at 592 and 593, highlights the factors that need to be taken into account in exercising that discretion (at 571-572):
Whether Australia is a clearly inappropriate forum will depend on the general circumstances of the case, taking into account the true nature and full extent of the issues involved. These include whether each forum recognises the orders and decrees of the other; which forum can provide more effectively for the complete resolution of the controversy; the order, stage and costs of the proceedings; the connection of the parties and the marriage to each jurisdiction and the issues upon which relief might depend. Matters such as the prima facie right to insist upon the exercise of jurisdiction once invoked and the substantive law of the selected forum should not be given undue emphasis.
It is important to record at this point that his Honour was cognisant of what factors he needed to address, and that is readily apparent from his reasons for judgment as summarised above.
His Honour appropriately took into account the stages at which the proceedings had reached in each forum. His Honour correctly put great store in the fact that there had been extensive proceedings in Australia including in relation to the children, and that those proceedings had been completed, whereas the Indonesian proceedings were only at an early stage. Significantly, there was no challenge by the husband to these findings.
There was then the close connection of the wife and the children to Australia in terms of their past, present and future residence. Again there is no challenge by the husband to these findings by his Honour.
As to the factors that favoured the husband’s argument, although there was no proof, his Honour was prepared to accept and take into account the husband’s assertion that an order of the Australian Court would not be recognised in Indonesia, and that the husband proposed to pursue the proceedings in Indonesia (Ground 5). However, his Honour found that these factors did not demonstrate that Australia was a clearly inappropriate forum, and I am not persuaded that his Honour was in error in so finding.
The husband suggests that his Honour “ignored” the fact that from the time the parties were married they spent the majority of their time “outside Australia” (Ground 6). However, it is beyond doubt that his Honour took into account the time that the parties resided in Australia, and he was well aware of the periods of time when they resided elsewhere, and there can be no basis for this complaint.
The husband also says that his Honour “ignored” his allegations as to the content and source of “evidence” as to the wife’s behaviour (Ground 7), and “ignored” that no “forensic assessment” had been undertaken in Australia as to the wife’s perjury in “various court proceedings” (Ground 8). These are not only submissions that were not put to the trial judge and thus cannot be pursued on appeal, but they are submissions that have no relevance to the issues at hand. The fact of the matter is that the husband simply does not like the decision of Judge Connolly in the lengthy parenting proceedings, and he was unable to pursue an appeal against the orders that were made. Those proceedings are concluded and Judge Connolly’s decision is presumed to be correct.
Next, the husband suggests that the Court in Indonesia will more properly address the issues in dispute than the Court in Australia (Ground 9). There was no evidence placed before his Honour by the husband to establish this proposition, and indeed it was not even raised. Accordingly, nothing more needs to be said.
The husband further says that the wife has ignored invitations to attend the hearings in Indonesia, and the Court there will eventually make orders sought by the husband (Ground 10). The position taken by the wife in relation to the Indonesian proceedings does not demonstrate that the proceedings should not continue in Australia, and his Honour was well aware of, and took into account the fact that the husband would pursue the proceedings in Indonesia.
The husband also submits that in proceeding as his Honour did he has “violated" the human and legal rights of the parties (Grounds 14 and 17). This is again a submission without substance; there was no evidence presented to
his Honour to establish this proposition, and as far as I am concerned, there could not be such evidence.
Finally, in Ground 15 the husband appears to be saying that by making the order, his Honour has created a dispute where there need not be one, and the exercise is an inefficient use of public resources. It is of course the husband who has pursued the proceedings in Indonesia, but again, this is a complaint without any substance. His Honour was tasked with determining whether Australia was a clearly inappropriate forum as a result of the husband’s application to dismiss the wife’s proceedings. There is no justification to suggest that his Honour has done anything other than he is required to do in accordance with the law.
These challenges that the husband makes to the exercise of discretion by the trial judge can be seen to be in the main challenges to the weight that
his Honour gave, or did not give, to the various factors that needed to be taken into account. However, it is well established that there can only be appellate interference for this reason if this Court can “be well satisfied that the primary judge was plainly wrong, his decision being no proper exercise of discretion” (Gronow v Gronow (1979) 144 CLR 513 per Stephen J at 519-520). I am not persuaded here that in any respect his Honour was “plainly wrong”.
In summary then, I find no merit in any of the grounds of appeal.
Conclusion
Having found no merit in any of the grounds of appeal the appeal must be dismissed.
Costs
At the conclusion of the hearing of the appeal I received submissions from the husband and the wife’s counsel as to costs depending on the result of the appeal.
In the event that the appeal was dismissed, the wife sought an order for costs. The husband opposed that order, but in my view there are clear circumstances justifying an order for costs in the wife’s favour, and I propose to make that order.
I certify that the preceding sixty-one (61) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Strickland delivered on
16 February 2015.
Associate:
Date: 16 February 2015
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