HUSBAND FILES FOR DIVORCE IN AUSTRALIA BUT WIFE OPPOSES AND ALLEGES THAT THE COURT SHOULD NOT ENTERTAIN THE APPLICATION ALLEGING THAT AUSTRALIAN COURT IS NOT THE PROPER FORUM
Anand & Goda [2021] FCCA 12 (25 January 2021)
This is a divorce proceeding where the husband remains in Australia and institutes family law proceedings in India including divorce proceedings. The husband then institutes concurrent divorce proceedings in Australia which is opposed by the wife saying that this court should not entertain the husband’s divorce application since it is not the proper forum.
Facts:
These are divorce proceedings instituted by the husband and opposed by the wife.
The parties are both Indian by birth and were married there in 2012. In 2014 they relocated to Australia together following successful visa applications. The wife gave birth to their son in Australia just four (4) months later in 2014. In mid 2014, the wife returned to India with their son. The wife and their son have remained living in India ever since. The husband has remained living in Australia and gone on to become an Australian citizen, although he still visits India from time to time.
On 6 September 2017, the husband filed family law proceedings against the wife in the District and Sessions Judges Court in City B, Region C, India (“the Indian Court”). In those proceedings he sought a divorce petition, together with parenting orders permitting him to be able to spend time with their son in India each December. The wife filed response material in which she opposed the divorce application.
On 20 July 2018, while the Indian proceedings were still on foot, the husband filed the present Application for Divorce in this court. This is the only relief he seeks; he is not pursuing any other matrimonial relief in Australia. The wife filed response material in this court opposing the application. Her position is that this court should not entertain the divorce application at all, on the basis that India is the appropriate forum. She contends that in filing his application, the husband was displaying contempt of the Indian Court process.
Faced with the wife’s jurisdictional argument in this court, the husband took active steps to discontinue the Indian proceedings. But despite instructing his solicitors in India in May 2019 to prepare an appropriate application for withdrawal, the Indian proceedings still remain “live”. The proceedings, and his application to withdraw, were adjourned on a number of occasions before ultimately being adjourned to “a date to be advised” apparently as a result of the severe impact of COVID–19 on the operation of the Indian Court.
Issue/s:
- Are these proceedings oppressive, vexatious or an abuse of process so as to make Australia a clearly inappropriate forum?
- Should the court grant the divorce order?
Law:
- The Court is ordinarily obliged to exercise the jurisdiction conferred upon it by statute, were regularly invoked. But if the local forum is a “clearly inappropriate forum” for the dispute then the court must stay the proceedings: Voth v Manildra Flour Mills Pty Ltd [1990] HCA 55
- Section 48 of the Family Law Act
Analysis:
(1)
In the present case, the Indian Court has not restrained the husband from bringing these proceedings. Moreover, the wife does not positively contend that an Australian divorce order would not be recognised in India and neither party has called any evidence on point.
Aside from a claim for costs arising out of her defence of the Indian proceedings, the wife has not brought any other substantive matrimonial claims against the husband in the Indian Court. Moreover, the husband is withdrawing the Indian proceedings.
The wife does not contend that her costs application in the Indian court would be in any way affected by an Australian divorce order. It would be surprising if it did. Certainly this court has no jurisdiction to make any order as to the costs of the Indian proceedings.
Ultimately, the wife has the onus of establishing that Australia is a “clearly inappropriate” forum. In all the circumstances the court is not satisfied that Australia is a “clearly inappropriate forum”. It follows that the court must proceed to determine the husband’s application in accordance with Australian law.
(2)
Section 48 of the Family Law Act requires that spouses be separated for a continuous period of at least twelve (12) months preceding the filing of a divorce application. Here, that requirement is easily met.
The court is not persuaded that there is any reasonable likelihood of cohabitation being resumed.
Conclusion: The court orders that the divorce application be granted.