To apply for divorce in Australia, you must have been separated from your spouse for 12 months prior to filing your application for divorce. This requirement satisfies the ground for divorce being the irretrievable
breakdown of marriage. The Court must also have jurisdiction to hear the divorce application and make a divorce order in accordance with section 48 of the Family Law Act.
The question of whether Australia or India was the appropriate forum to hear this matter arose in Bakshi & Mahanta (No 2) [2022] FedCFamC1A 90 where the Wife appealed a decision of the making of a divorce order on 13 September 2021.

Background facts of the case

The parties were born in India. They arrived in Australia and commenced working in Australia sometime in 2004. The parties were married in 2006 having both a Hindu and Christian ceremony in India. The parties Child was born in Australia in 2008. The Husband became a permanent resident of Australia in 2009 and the Wife became an Australian Citizen in 2010. On 12 May 2018, the parties separated on a final basis.

The parties were litigating property settlement issues in Australia and these proceedings were listed for final hearing in 2022. On 9 March 2020, the Wife commenced proceedings in India seeking property orders including for ancestral property amongst other issues. The Wife did not provide much evidence of these proceedings. The Husband filed an application for divorce on 11 March 2020 in the Federal Circuit Court of Australia (as it then was) being 2 days after the Wife’s application was filed in India.

The main grounds of appeal for divorce in australia:

1. That the Court did not have the jurisdiction to make the divorce Order. The Court has jurisdiction to hear or determine a divorce application if at least one of the parties are domiciled in Australia for 12 months prior to filing their application, or if at least one party is a citizen or a permanent resident. In this case, the jurisdiction was not in issue because the parties were domiciled in Australia. As the issue of irretrievable breakdown of marriage was not in issue and jurisdiction was now proven, the Court does not have the discretion to refuse making the divorce order. The Court may however decline to exercise jurisdiction by staying (temporarily putting the matter on hold) or dismissing the divorce application if the
proceedings were being litigated in an inappropriate forum.

2. That the Federal Circuit Court of Australia (Division 2 of the Federal Circuit and Family Court of Australia) was a clearly inappropriate forum to hear or determine this matter. This is an inherent power of the Court to stay or dismiss proceedings if the Court’s processes are being used to bring about injustice which arise because the proceedings are oppressive, vexatious or an abuse of process. The stay/dismissal will not apply just because it is more convenient or more appropriate to hear the matter in another
jurisdiction, there needs to be an assessment of enough factors which indicate that the local forum is clearly the inappropriate forum. The stay or dismissal of proceedings should only be exercised with
extreme caution.

The other factors include whether the controversy between the parties is the same in both jurisdictions, whether or not complete relief is available in the local jurisdiction and whether there is nothing to be
gained in the overseas proceedings, or whether the overseas proceedings will give rise to additional or other remedies, the order in which the proceedings were instituted, the stage which they have reached and the costs that have been incurred, the connection of the parties and their marriage with each of the jurisdictions and the issues on which relief might depend on those jurisdictions, whether having regard to their resources and their understanding of language whether the parties are able to participate in the respective proceedings on an equal footing (Talwar & Sarai [2018] FamCAFC 152). In this case, the Court noted that property settlement proceedings in the same Court, being Division 2, were already on foot. At the time of the contested divorce hearing, both parties were legally represented.

The Wife contended that the Indian proceedings were commenced to settle the matrimonial pool for the purpose of the Australian proceedings including potential claim for her and her son to ancestral property under Hindu law. The Wife subsequently contended that the divorce order would adversely impact on her and her son’s entitlement to property under Hindu Law but failed to produce evidence in support of this contention or make specified submissions to support this claim.

The Wife also relied on a letter of advice from a lawyer in India about the Indian proceedings and how such divorce order would not be recognized in India because there was no agreement between Australia and India regarding recognition of divorce. This letter was treated with little weight as was the rest of this contention as the Wife failed to submit evidence or make submissions with respect to this contention. It was also noted that if the Wife’s letter of advice was correct, the parties may be required to be divorced in both countries regardless.

3. The primary judge erred in failing to take into account injunctions granted by the Indian Court and by allowing the Husband to violate Indian court orders. The Wife asserted that there is an injunction against the Husband restraining him from applying for divorce in any jurisdiction in India or from entering into a de facto relationship or marriage until the divorce is granted by an Indian Court. The Wife did not provide any evidence about the contents of these injunctions and the Court could not place any weight on this contention.

Conclusion

In this particular case, the Wife was unsuccessful with her appeal and the divorce order remained. The Court’s view on the issue of determining whether Australia is a clearly inappropriate forum depends on the general circumstances of the case taking into account the true nature and full extent of the issues involved, there is no exhaustive list used. Australia may be a clearly inappropriate forum if the Australian proceedings are productive of serious and unjustified trouble and harassment and seriously and unfairly burdensome, prejudicial or damaging (Oceanic Sun Line Special Shipping Company Inc v Fay (1988) 165 CLR 197).

Pannu Lawyers extensively practice in Family Law and regularly appear at the Federal Circuit and Family Court of Australia, which has court locations in Parramatta (NSW) and Dandenong (VIC). We are conveniently located within a walking distance from the Blacktown train station and can accommodate after hour appointment to suit you. Call our office on 0299201787 to discuss your matter in a confidential manner.