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Ruling on Application for Divorce

FEDERAL CIRCUIT COURT

OF AUSTRALIA

AT DANDENONG

 

DGC 806 of 2020

 

MR BASU

Applicant

 

And

 

MS GHOSH

Respondent

 

REASONS FOR JUDGMENT

 

(Revised from Transcript)

 

1. The first matter I note is that the mother is unrepresented.   I have permitted her friend, Ms B, to address the Court and to respond to questions owing to the evident and significant distress experienced by the respondent, although this process necessarily made the forensic aspects of the matter somewhat more difficult.  I recall also that the mother sought, both yesterday and at the commencement of the proceeding today, in effect to adjourn the matter to enable her to obtain legal representation.  I did not grant that adjournment application because, putting the matter shortly, I had no confidence that the wife would in fact be able to obtain legal representation on a pro bono basis for a proceeding of this sort. 

2. That is because, at least in part, the only real issue before the Court is when a divorce is able to be made.  From the husband’s case it can be made today.  On an alternative basis it can be made in November.  But even if I entirely accept the position of the wife, the husband will be entitled to a divorce in May of next year in any event.  I was informed by Ms B that they had tried numerous lawyers in an endeavour to obtain assistance.  And that only goes to reinforce the accuracy of my own perception that legal representation had not been obtained and that adjournment was not appropriate.  I turn now to formal matters.  There is no question that there is a divorce application before the Court lodged by the husband. 

3. He is domiciled in Australia on a visa that is presently due to expire in 2022.  Very understandably, neither party has raised the question of forum but, pursuant to the High Court’s decision in the case of Henry & Henry [1996] 185 CLR 571 (“Henry”), in my view it is clear that both parents being Australian and the husband being domiciled here at least for another two years, Australia is not a clearly inappropriate forum in the sense described in Henry.  Accordingly, the Court clearly has jurisdiction to proceed with the matter.  There is no question that the wife has been served with the application because she has filed a response, through her then lawyers, as anticipated in the proceeding today.

4. There is equally no question that the marriage is proved, both because the original certificate has been appended to the husband’s affidavit, and because, of course, the wife is here to dispute the divorce in any event.  Although this takes the matter out of order, I note that there are two children:  the older child who I infer is a boy, is presently living with the father’s parents in India; and the second child who I assume is a girl, is living with the mother’s parents in India. 

RECORDED  :  NOT TRANSCRIBED

Both are girls; the two children are with the grandparents in India.

5. The Court is not in a position to be satisfied, pursuant to section 55A(1)(b), that the arrangements for the children are satisfactory because, in fact, that matter is in significant dispute between the parties.  But in the circumstances where the children appear to be in the care and control of grandparents, the Court can be satisfied, to use the words of section 55A(1)(b)(ii), of the circumstances by reason of which the divorce order should take effect even though the Court is not satisfied that appropriate arrangements are in place for the children.

6. That then brings us to the real issue in dispute which is the date of separation.  The wife says that this was when she was served with the application.  There is no precise date denoted but is said to have been relatively shortly before a hearing before a registrar.  The husband says separation took place when he left India on 10 November 2018.  He says that he returned in 2019 but did not cohabit with the wife in any way.  He says he saw the children – something I doubt is true because, as I understand it, the second child was with the mother’s parents and the relationship between the two families is poor.  Nothing really, ultimately, turns on that.

7. On 13 November 2019 the mother returned and came to Australia.  In my view it seems clear on the materials that both sides knew the relationship was over on that occasion.  I note that the husband applied for an intervention order on 12 November 2019, albeit that it was not listed, it would seem, until April of the following year.  I note that the wife also filed an intervention order application on 25 February 2020.  What she had to say in that application is relevantly of note.  She said,

MY NAME IS MS GHOSH.  I AM SEEKING AN INTERVENTION ORDER AGAINST MY HUSBAND MR BASU, I HAVE KNOWN HIM FOR 9 YEARS.  WE HAVE 2 CHILDREN TOGETHER, X, 7YO AND Y, 2YO, BOTH CHILDREN RESIDE OVERSEAS.  IN NOV 2019 THE RESP THE RESP LIED TO ME AND SAID MY MOTHER WAS VERY SICK IN INDIA AND NEEDED MY HELP.  WE ALL WENT OVER AS A FAMILY, I STAYED WITH THE RESPS FAMILY, THE RESPONDENT RETURNED TO AUSTRALIA, AFTER ONE MONTH HE WAS IGNORING ALL MY MESSAGES AND CALLS, HE WOULD NOT RESPOND.  I RETURNED TO AUSTRALIA.  THE RESP WOULDN’T DISCUSS ANYTHING WITH ME AND HE WOULD CONSTANTLY PLAY ON HIS PHONE AND IGNORE ME.  THE RESP WAS ABUSING ME TO GET MONEY FOR HIS PERMANENT RESIDENCY, I WAS UNABLE TO GIVE IT TO HIM SO HE HAS CUT OFF CONTACT WITH MY DAUGHTERS WHO STILL RESIDE IN INDIA.  THE RESP TOOK ALL MY MONEY AND SAID IF I WANT PERMANENT RESIDENCY I HAVE TO PAY FOR IT.  THE RESP HAS BEEN WORKING EVEN THOUGH HE IS NOT PERMITTED TO, DUE TO HIS VISA ALLOWANCES. 

8. I note that the mother seems to me to be wrong in asserting that the husband was in India in November 2019.  His passport stamps show that he was there from 7 August 2019 until 18 September 2019.  It is particularly noteworthy that when the matter came on before the registrar, the wife was legally represented, and through him it was asserted that the date of separation was 7 November 2019.  In my view, taking all this evidence together, it is clear that, at the very latest, by 7 November 2019, the marriage was irretrievably broken down.  What I am going to do is adjourn this matter to 8 November 2020 at 9.30 before me and at that time, the order will be made.

9. The position of the mother in relation to her children, I have to say in passing, is heart-wrenching, and my heart goes out to her.  The circumstances of her being denied any access to the elder child in particular are utterly unsatisfactory and do the husband no credit whatsoever.  However, the wife needs to understand that I have no power in this proceeding to do anything about such matters.  They are simply not before me, and even if they were, I have no authority to make orders affecting children overseas.  I am afraid that matter will have to be resolved in some other fashion.

10. I note that there appear to be issues arising as to visa status for both of these persons, and I suspect that they are both keenly conscious of that.  I also suspect that the nature of this dispute is somewhat strongly coloured by cultural influences that I can guess at but over which I have no expertise.  In any event, the husband’s application is, in my view, made good to the extent that it is established, to my mind, that the date of separation was 7 November 2019.  As I say, I will adjourn the matter to 8 November at which stage I will make the divorce order.

 

I certify that the preceding ten (10) paragraphs are a true copy of the reasons for judgment of Judge Burchardt

 

Associate: 

 

Date: 21 September 2020

Posted in: Derek Legal Blog at 28 October 20

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