Tedja v Sony - [2015] HCASL 101

TEDJA
v
SONY
[2015] HCASL 101
M30/2015

The applicant and the respondent were married in Jakarta in November 2000. They have lived in Australia since 2006, apart from a period in 2009-2011 when they returned to Indonesia. The parties and their children were granted permanent resident visas in 2010. They separated in 2012, and on 6 May 2013 the Federal Circuit Court of Australia (Connolly J) made final orders dealing with issues concerning their children. On 15 August 2013, the respondent filed an application for divorce in the Federal Circuit Court. On 26 August 2013, the applicant filed a divorce application in Indonesia.
On 28 January 2014, the Federal Circuit Court (Burchardt J) granted the respondent a divorce. The applicant had submitted that the respondent's application should be dismissed on the basis that Indonesia was the appropriate forum for the matter to be determined. Burchardt J rejected this submission, holding that, in the light of all the relevant circumstances, Australia was not a clearly inappropriate place in which to have the matter heard and determined.
On 16 February 2015, the Family Court of Australia (Strickland J) dismissed the applicant's appeal. Strickland J held that the applicant's challenges to the exercise of discretion by the primary judge in holding that Australia was not a clearly inappropriate forum were without merit and did not show that the primary judge was plainly wrong so as to justify interfering with the decision.
The applicant has applied for special leave to appeal to this Court. The applicant's draft notice of appeal does not articulate any error of law in the decisions of the Courts below. To the extent that the applicant's summary of argument is based on new evidence of a divorce order granted in Indonesia, this evidence does not render the orders of the lower Courts erroneous and both the primary judge and the Court below addressed the possibility that the Indonesian proceedings might progress. An appeal to this Court would enjoy no prospects of success. Special leave is refused.
Pursuant to r 41.10.5 we direct the Registrar to draw up, sign and seal an order dismissing the application.

S.M. Kiefel
18 June 2015 P.A. Keane

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

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Details

Case: [2015] HCASL 101
Decision Date

CaseChat Overview and Summary

In the matter of Tedja v Sony, the applicant and the respondent were married in Jakarta in November 2000 and lived in Australia since 2006. The parties separated in 2012 and the respondent filed an application for divorce in the Federal Circuit Court of Australia in August 2013. The applicant filed a divorce application in Indonesia on 26 August 2013. The Federal Circuit Court granted the respondent a divorce on 28 January 2014, and the Family Court of Australia dismissed the applicant's appeal on 16 February 2015. The applicant has applied for special leave to appeal to the High Court of Australia.

The legal issues in this case involved the jurisdiction of the Australian courts to hear the divorce application and whether Indonesia was the appropriate forum. The applicant argued that the Federal Circuit Court should have dismissed the respondent's application for divorce, as Indonesia was the appropriate forum for the matter to be determined. The primary judge held that, in the light of all the relevant circumstances, Australia was not a clearly inappropriate place in which to have the matter heard and determined. The Court of Appeal upheld the primary judge's decision and held that the applicant's challenges to the exercise of discretion by the primary judge were without merit.

The High Court considered the applicant's application for special leave to appeal. The Court noted that the applicant's draft notice of appeal did not articulate any error of law in the decisions of the Courts below. The Court also noted that the applicant's summary of argument was based on new evidence of a divorce order granted in Indonesia. However, this evidence did not render the orders of the lower Courts erroneous, and both the primary judge and the Court of Appeal addressed the possibility that the Indonesian proceedings might progress. The Court held that an appeal to this Court would enjoy no prospects of success, and therefore refused the application for special leave to appeal. The Court also directed the Registrar to draw up, sign, and seal an order dismissing the application.

Orders