International families and Australian family Court’s Jurisdiction

This article discusses two cases where the jurisdiction of the Australian court to decide family disputes of Indian origin couples were challenged.

In my two previous articles, I have compared the Australian jurisdiction with Pakistan, Nepal, Sri Lanka, Middle East, and other countries.

In this article, the first case I discuss is Talwar V Sarai (pseudonym) [2018] FamCAFC 152.

In this case, the appeal against a divorce order was allowed on the ground of jurisdiction.

The appeal court held that as per the facts of the case adjudication by the Indian court may be more appropriate than the adjudication by the Australian court.

The second case is Kaur & Singh [2007] FMCAfam 657 in this case the court overruled the jurisdictional objection and allowed the divorce application.

Talwar v Sarai [2018]

The parties were Indian nationals by birth, but the husband had lived in Australia for several years and was an Australian citizen.

In February 2013 while the husband was visiting India, the parties met and

arranged to marry. In August 2013, the parties married in India under the Hindu Marriage Act 1955 (India)

The husband returned to Australia in September 2013.

The wife completed the application for her partner visa so that she could join her husband in Australia.

On 31 December 2013, the husband wrote to the Department of Immigration and Border Protection Australia to withdraw his sponsorship for the wife’s partner visa.

In May 2014, the wife visited Australia, but the husband refused to meet her. She came to know that sponsorship to her visa application was withdrawn, and she returned to India in August 2014.

On 6 February 2015, the wife’s father made a criminal complaint with the police, alleging criminal breach of trust, cheating and that the husband and his family had unlawfully demanded a dowry from the wife’s family. Subsequently, criminal charges under ss 34, 406, 420 and 498A of the Indian Penal Code 1860 (India) were brought.

Proceedings were also commenced against the husband and his family under the Dowry Prohibition Act 1961 (India).

In those proceedings, the wife asserted, amongst other things, that the husband and his family had unlawfully demanded a dowry from her and her family and have unlawfully retained gifts that were provided upon marriage. The wife had also filed a complaint against the husband under the Protection of Women from Domestic Violence Act 2005 (India).

On 10 March 2017, the husband filed an Application for Divorce in the Federal Circuit Court of Australia. Although the wife was served with the application, she did not file a Response within the prescribed time limit.

On 10 April 2017, the wife applied to the Family Court of India seeking a declaration that the divorce order made in the Federal Circuit Court of Australia was null and void and that the husband be permanently restrained from proceeding with his divorce application in Australia.

The husband instructed a lawyer to appear on his behalf in Indian proceedings.

On 12 May 2017, the divorce application was heard and granted by the Federal Circuit Court Australia.

On 27 May 2017, the Family Court in India made an injunction restraining the husband from continuing his proceedings in Australia.

On 26 July 2017, an order for interim relief was made in India by the Metropolitan Magistrates Court (Mahila Court) granting the wife interim maintenance from the husband.

The wife filed an Application for Review on 6 June 2017 that was refused, and the primary judge made the divorce order.

The Law Applied by the Appeal Court

The appeal court applied: Oceanic Sun Line Special Shipping Company Inc v Fay (1988) 165 CLR 197 (“Oceanic”) at 247 – 248; Voth v Manildra Flour Mills Pty Ltd (1990) 171 CLR 538 (“Voth”) at 564; Henry v Henry (1996) 185 CLR 571 (“Henry”)).

In these cases it was held that an Australian court must stay the proceedings If the court is satisfied that Australia is a clearly inappropriate forum.

The appeal court also cited CSR Ltd v Cigna Insurance Australia Ltd (1997) 189 CLR 345 on the point that an Australian court must stay the proceedings if the court finds that the proceedings are “oppressive” or “vexatious” or an “abuse of process”.

The court discussed different cases where an Australian court refused the jurisdictional objection and held that Australia is an appropriate forum than to the overseas jurisdiction. For example, Lan & Hao (No 2) (2017) FLC 93-795 (“Lan & Hao”) whereat it was held that the mere existence of proceedings in two different countries at the same time does not, of itself, constitute vexatious or oppressive conduct.

Finally, the appeal court found that as per the presented facts of the case complete relief was available to the parties in the Indian proceedings.

The appeal court remitted the matter back for a fresh decision by a different judge.

Kaur & Singh [2007]

The parties were married in New Dehli, India on 13 October 2002 as per Sikh rites and the marriage was registered under the Hindu Marriage Act 1955 (India).

The applicant wife was an Indian citizen when she filed a divorce application in Australia.

The husband filed his response and challenged the jurisdiction of the Australian court to grant the divorce.

The husband submitted that the Australian Court has no jurisdiction to hear the divorce application because the wife is an Indian Citizen holding an Indian Passport.

The husband mentioned that the wife had filed a previous divorce application in India thus she had ‘submitted herself’ to the jurisdiction of the Indian Courts and accordingly the Australian Court has no jurisdiction.

The respondent-husband further argued that at the time of the hearing, the applicant wife was not an Australian Citizen and she had not been in Australia for one year immediately preceding the date of the Application.

The wife accepted that she was not an Australian citizen at the time of hearing of the divorce application, but she claimed that the Australian citizenship application was in progress.

The wife submitted that she was an Australian permanent resident and satisfies the domicile requirements to avail remedy from an Australian court.

The court referred to the Domicile Act, 1982 (Cth) and held that she might not be eligible for the domicile of origin, but she was eligible for the domicile of choice and domicile of dependence.

The Court at paragraphs 20 & 21 of the judgment found that the standard of proof to determine whether someone has acquired a domicile of choice is a balance of probabilities.

The Court said that there are two requirements to establish whether a person has acquired a domicile of choice: the first one is being lawfully present in a country, and the second having the intention of remaining in the country indefinitely.

The court observed that the applicant wife had given direct evidence, on which she was not cross-examined, of her intention to live permanently in Australia, which she regards as her home.

The court also noted that it is acceptable evidence that the applicant wife had been granted permanent residency in Australia and therefore there is no issue of her lawful presence in Australia.

The Court found that the Applicant meets the domicile requirement for section 39(3)(b) of the Family Law Act 1975 (Cth).

The court dismissed the objections submitted by the respondent-husband and allowed the divorce application.

Conclusion

The exercise of Australian jurisdiction in an overseas marriage is subject to some conditions and each case is decided as per its peculiar facts.

Disclaimer: This article is general information for the community and not legal advice for legal advice please contact with particular facts of your case.

Originally published on 16 July 2021 at LinkedIn.

Basharat Ahmad Jatt

Barrister & Solicitor

Principal

Jatt Lawyers

Melbourne, Australia


Disclaimer

This article is general information for the community and not legal advice. For legal advice please contact with particular facts of your case.

The author is an Australian Lawyer of Pakistani origin. Anyone looking for an Urdu, Punjabi, or Hindi speaking lawyer in Australia can confidently contact Jatt Lawyers.

Legal support for Australian Muslims for inheritance and family law issues in Australia is the common practice area of Jatt Lawyers.

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