VERGONYOS & SUREDA

[2020] FCCA 1277

FEDERAL CIRCUIT COURT OF AUSTRALIA

VERGONYOS & SUREDA [2020] FCCA 1277

Catchwords:
FAMILY LAW – Application for Review of Registrar’s Decision – divorce order made by Registrar – argument as to jurisdiction – Australia not a clearly inappropriate forum – jurisdiction satisfied – no prejudice against Wife – divorce order made.

FAMILY LAW – Costs – where the Wife was wholly unsuccessful – no merit in contested divorce – costs order made.

Legislation:

Family Law Act 1975 (Cth), ss.39(3), 39(3)(a), 39(3)(b), 39(3)(c), 55(5), 117(2),

117(2A)

Federal Circuit Court Rules 2001 (Cth), Sch. 1

Applicant: MR VERGONYOS

Respondent: MS SUREDA

File Number: MLC 11434 of 2019

Judgment of: Judge Carter

Hearing date: 18 May 2020

Date of Last Submission: 18 May 2020

Delivered at: Melbourne

Delivered on: 22 May 2020

REPRESENTATION

Solicitor Advocate for the Applicant: Ms Enbom-Goad

Solicitors for the Applicant: Farrar Gesini Dunn

The Respondent appeared in person.

ORDERS

1. Upon the Application of Mr Vergonyos for a divorce order in relation to the marriage between Mr Vergonyos and Ms Sureda, which was solemnised in 1981, THE COURT FINDS THAT:-

   (a)the marriage is proved;

   (b)the Husband was at all material times domiciled in Australia; and

   (c)the ground for the Application for Divorce order, namely that the marriage has broken down irretrievably, is proved.

2. THE COURT DECLARES THAT:-

   (a)there are no children of the marriage to whom section 55A(3) of the Family Law Act 1975 (Cth) applies.

3. A divorce order be made, such divorce order to take effect and thereby terminate the marriage on the twenty-third day of June 2020.

4. The Wife’s Response to Divorce filed on 19 February 2020 be dismissed.

5. The Wife’s Application for Review of Exercise of Power by Registrar filed on 19 March 2020 be dismissed.

6. The Wife’s Application in a Case filed on 11 May 2020 be dismissed.

7. The Wife pay the Husband’s costs, fixed in the sum of $1,120, within 28 days of the date hereof.

IT IS NOTED that publication of this judgment under the pseudonym Vergonyos & Sureda is approved pursuant to s.121(9)(g) of the Family Law Act 1975 (Cth).

FEDERAL CIRCUIT COURT
OF AUSTRALIA
AT MELBOURNE

MLC 11434 of 2019

MR VERGONYOS

Applicant

And

MS SUREDA

Respondent

REASONS FOR JUDGMENT

Introduction

1. The parties in these proceedings married in 1981 in Country B. The Husband says they separated on 11 September 2003. He issued an Application for Divorce on 9 October 2019, which the Wife opposes. The Wife has filed the following material:-

   a)a Response to Divorce filed on 19 February 2020;

   b)an Application for Review of Exercise of Power by Registrar filed on 19 March 2020 (“the Application for Review”);

   c)an Application in a Case filed on 11 May 2020 (“the Application in a Case”);

   d)an affidavit filed on 11 May 2020;

   e)a further affidavit filed on 15 May 2020; and

   f)a Case Summary Document filed on 15 May 2020.

2. The Application for Divorce was initially heard by Deputy Registrar Ms C (“Registrar Ms C”) on 20 February 2020. On that day, the Wife attended electronically. The divorce was granted, to become absolute in one month.

The Wife’s opposition to the divorce

1. The Wife filed the Application for Review on 19 March 2020 in relation to decision to grant the divorce on 20 February 2020. Pursuant to section 55(5) of the Family Law Act 1975 (Cth) (“the Act”), an application for review is an appeal, and accordingly, the divorce has not yet taken effect. I have set out the additional documents filed by the Wife, including the Application in a Case, in which she seeks there be no divorce, that the hearing before me be adjourned and that her various applications and affidavits be admitted into evidence, notwithstanding the deficiencies in their swearing as a result of the COVID-19 pandemic.

2. I have read and had regard to all of the documents filed by the Wife in these proceedings, together with the Wife’s submissions made at the hearing before me. Whilst there are some issues with the manner in which the documents have been sworn, given the current pandemic, I accept the documents as if they had been properly sworn and translated. I note, additionally, that no objection was made by the solicitors for the Husband to any of the documents on the basis that they had not been properly sworn or translated.

3. The Wife appeared on her own behalf both before Registrar Ms C and in the proceedings before me. She has no familiarity with Australian law. Doing the best that I can, my understanding is that the Wife’s relevant objections to the divorce are that:-

   a)Australia is not an appropriate forum; and

   b)the parties’ relationship may not have irretrievably broken down.

4. The Wife sought to raise a number of additional matters, including her views that:-

   a)the Husband has not provided an appropriate address for service. In particular, she says he does not reside at the address he included on his Application for Divorce, which she says is his work address. She says that the Post Office Box provided by the Husband is insufficient as she would not be able to have someone sign to acknowledge receipt of material should she need to send correspondence in the future. The Husband has lawyers on the record who filed a Notice of Address for Service on 17 January 2020. In her Case Summary Document, the Wife also seeks “a disclosure if there are any personal relationships between my husband and his legal representatives, to avoid conflict of interests”. There seemed to be no rational basis for her concern in this regard. In any event, those issues are not relevant to the discrete issue before me regarding whether the divorce application can proceed;  

   b)the Husband violated her parental rights when he assisted the parties’ now-adult children to become Australian citizens without the Wife’s consent. She said he has alienated the children from her. She said she wants an investigation into how these events came about, and “compensation” for same. Given that the parties’ children are now all adults, those matters do not have any bearing on whether the divorce can proceed;

   c)the Husband has – some years ago - retained or removed photos of the children and of the parties’ wedding and other special occasions. I cannot see how that is relevant to the matters now before me;

   d)the Husband has not provided her with spousal maintenance. This is not relevant to the matters now before me;

   e)the Husband may be in a relationship with another woman, who could be a “third party with special interests to break down the marriage” and pressuring the Husband to proceed with the divorce. The Wife said this other woman could be a threat to the Wife’s safety, and that this woman may be plotting to harm her. She sought “a disclosure of the name and nationality of his partner so I can be protected if I travel to Australia or abroad”, along with her address and the Husband’s address. The Wife did not adduce any evidence at all to support her suggestion that the Husband may be being pressured into proceeding with the divorce. The balance of her submissions in relation to the risks that she said existed to her safety are not relevant, were far-fetched and had no rational basis; and

   f)the Wife is opposed to being divorced on religious grounds.

5. The Wife urged that the matter proceed to a mediation. That is a course that I consider neither warranted, nor available to me.

6. As observed, in relation to those additional matters raised by the Wife, they are not relevant to the limited issue in dispute before me. The only applications I must determine are the Application for Divorce, the Application for Review and the Application in a Case.

7. The Wife also said that Registrar Ms C only allowed approximately five minutes for the hearing. The Wife said that this was unacceptable and a violation of her human right to a fair trial. When the matter was before me, I permitted the Wife to raise such issues as she sought fit, within reason.

Jurisdiction

1. The Husband in his material relies on three grounds for jurisdiction:-

   a)he regards Australia as his home and intends to live here indefinitely;

   b)he is an Australian citizen by grant of citizenship, having been made an Australian citizen in 2010. The certificate of citizenship is on the Court file; and

   c)he ordinarily lives in Australia and has done so for the 12 months immediately preceding the filing of the application for divorce. It is not in dispute that he has lived in Australia since 2003.

2. The Husband clearly meets all three of the jurisdictional requirements as set out in sections 39(3)(a), 39(3)(b) and 39(3)(c) of the Act. These were not challenged in any real sense by the Wife.

3. The Wife says that the matter is a very complex international matter, and that Australia has no jurisdiction to hear and determine the divorce application. I am unclear what is complex about this Application for Divorce, and she did not raise any issues that supported her assertion in this regard.

4. The Wife asserts that the parties were married in Country B, and if the marriage has broken down, they were living in Country D at the time of separation. She said that pursuant to Country B law, a divorce is to be granted by the last country in which the parties jointly resided. The Wife says that they were both living in Country D in 2003, and accordingly, Country D is the appropriate jurisdiction for any divorce proceedings.

5. The Wife has attached a document in Country D headed “Regulatory Separation Agreement” to her Response to Divorce. That document bears a seal that has been translated as being the seal of the Civil Division of the First Instance Tribunal, dated 16 October 2003. In that document it is recorded that “The Civil Code of Law in Country B, states that the separation is mandated by the law of the country of last residence of both parties, being the Civil Law of Country D”. However, neither party now resides there. I note further that the Husband did not sign that document and in her documents the Wife sets out that he did not ratify that agreement. I do not know who drew that document. I have no evidence from a lawyer in Country D as to what the document actually means or the status of it.

6. Notwithstanding the Wife’s assertion that all proceedings regarding the marriage have to be conducted in Country D, she also submitted that alternatively the proceedings should be conducted in the United Kingdom. That is because that is where the Wife now resides. She said the United Kingdom would be a more appropriate forum than Australia as it is in Europe. However, she does not accept that the Husband’s physical residence in, or citizenship of Australia is sufficient to attract the jurisdiction of this Court.

7. The Wife says there were subsequent proceedings between the parties in 2009, which appear to be in relation to parenting. Given that the parties’ daughters are now all adults, I do not anticipate there being any ongoing parenting dispute before any court.

8. In my view, having met the requirements in section 39(3) of the Act, the Husband has properly instituted proceedings in Australia. He has a primary right to have those divorce proceedings dealt with by this Court unless Australia is a clearly inappropriate forum.

9. In determining that question, I have to consider whether the continuation of the divorce proceedings here are oppressive, unfairly burdensome, prejudicial, damaging or vexatious. I have no evidence that the Wife would be disadvantaged, or suffer any injustice, if the divorce is granted by this Court. The Wife has been able to participate in the proceedings. Her English is excellent and she was afforded the opportunity to argue her case. I see no prejudice to the Wife in the divorce proceeding here, and she has adduced no evidence to suggest otherwise. I have no evidence there are divorce proceedings on foot in another country. Nothing in the Wife’s submissions point to any basis, nor raises any arguable case, that Australia is a clearly inappropriate forum to determine the Husband’s divorce application.

Irretrievable breakdown of the marriage

1. The Husband says the parties separated in 2003 when he moved to Australia. He has remained living here since.

2. The Wife concedes the parties have not lived together for approximately 17 years. Somewhat remarkably, she said that she was not sure that the marriage had irretrievably broken down. She said they were a “progressive” couple and that a marriage can continue even if parties do not share a residence. She said that if he Husband was living with another woman, then she would concede the marriage had ended.

3. Whilst it is true that some marriages are ongoing notwithstanding no common residence, it is plain that the parties’ relationship has irretrievably broken down. The Husband moved to Australia in 2003. The Wife remained living in Country D. She acknowledges that he moved to Australia without discussing that with her. Those facts are consistent with the fracturing of the marital relationship. I note the Wife refers in her Response to there being “a mutual agreement for legal separation in 2003”, and that the Husband leaving Country D in 2003 “prompted my decision to arrange a formal legal separation”. The Regulatory Separation Agreement annexed to the Wife’s Response records that “Both parties freely decide and agree the separation, and the marital life in common between them stops from this date”.

4. The children moved to Australia to live with the Husband in 2007. They have essentially not maintained a relationship with the Wife.

5. The Husband says he did not know the Wife’s whereabouts from around 2007. The Wife disputes this and says he has always know her whereabouts.

6. The Wife has travelled to Australia on only two occasions since the Husband moved here, being in 2011 and 2013. On neither of those occasions did she stay with the Husband. On the first visit, she did not see any of the family. On the second of those visits to Australia she says she came to surprise one of the parties’ daughters for her birthday, and happened to “bump into another daughter”. That daughter obtained an Intervention Order against the Wife to prevent her from attending again at the premises. The Wife has not attended in Australia for the past seven years.

7. The Wife deposes that the Husband has continued to refer to her as his Wife. I do not know the context in which that is said to occur, but until the divorce takes effect, she is his Wife and he is her Husband. Beyond stating that the parties’ maintained contact “more or less regularly” until August 2019, she adduced no evidence to support her assertion that the relationship “may” not have ended. There was no evidence, for instance, that the parties met with each other, socialised together, shared finances, were regarded by family and friends as continuing their relationship, or that they communicated with each other in a way that would suggest the marriage was ongoing. That is:-

   a)there is absolutely no evidence the parties’ relationship resumed in, or continued beyond, 2003; and

   b)the evidence is overwhelming that the marriage has irretrievably broken down, and is evidenced by the fact that the parties have been separated for at least 12 months prior to the Husband filing the Application for Divorce on 9 October 2019.

Findings

1. Accordingly, I am satisfied that this Court has jurisdiction to hear the Husband’s Application for divorce.

2. I find:-

   a)the marriage is proved;

   b)the Husband was at all material times domiciled in Australia; and

   c)the grounds for Application for Divorce order, namely that the marriage has broken down irretrievably, is proved.

3. I therefore order that a divorce order be made, with such order to take effect on 23 June 2020. 

Costs

1. The Husband sought that the Wife pay his costs fixed at $2,546. The Wife opposed any costs order being made against her. The Wife said the Husband should be paying her costs and damages.

2. The general rule in family law proceedings is that each party should bear his or her own costs. However, pursuant to section 117(2) of the Act, the Court can depart from that general rule and make such order for costs as it considers just, provided that the Court is satisfied there are circumstances that justify it doing so.

3. In determining whether to exercise the Court’s discretion and make an order for costs, I must take into account the factors outlined in section 117(2A) of the Act. No one factor must be present, and no particular factor carries more or less weight than any other.

4. I have no information regarding the parties’ respective financial circumstances. According to the material filed, the Husband is a general practitioner and the Wife is a researcher. Neither party is in receipt of legal aid. The Wife is self-represented.

5. The conduct of the parties as litigants has not been problematic, other than - as these reasons make plain - the Wife’s decision to contest the divorce application. It was not reasonable for her to pursue that course of action, which had no merit. The Wife has been wholly unsuccessful. Her opposition to the divorce has meant that the Husband has incurred legal fees, both in reading the Wife’s material and in being represented at the hearing before me.

6. In this matter, I am therefore satisfied that there are circumstances that justify departing from the usual rule, and the Wife should contribute to the Husband’s costs.

7. However, I do not agree with the quantum as sought. The Husband did not prepare any material in response to the Wife’s documents, so an amount under item 1 in Schedule 1 of the Federal Circuit Court Rules 2001 (Cth) (“the Rules”) in relation of the scale as sought is not justified. In my view, the appropriate amount is the costs according to scale for the Husband’s solicitor to attend the contested hearing before me. As I have set out, pursuant to section 55(5) of the Act, the Application for Review is considered an appeal, and proceeded on a contested basis before me. On that basis, I am satisfied that he appropriate matter under Schedule 1 of the Rules is a half-day hearing pursuant to item 13(b) of the costs scale. I shall make an order that the Wife pay the Husband’s costs for the half-day hearing fee of $1,120.

8. For all of the foregoing reasons, I make the orders as are set out.

I certify that the preceding thirty-six (36) paragraphs are a true copy of the reasons for judgment of Judge Carter

Associate: 

Date: 22 May 2020