Alobi & March [2025] FedCFamC1F 216 (3 April 2025)

1. The parties and any lawyers on the record shall personally attend a Conciliation Conference with a Registrar at 9.00 am on Thursday 10 April 2025.
2. The parties are to confer and file a draft joint balance sheet and proposed minutes of order by 4.30 pm on Wednesday 9 April 2025.
3. The matter is listed for directions in person before Justice Aldridge on Monday 14 April 2025 at 9.30am.
4. The parties are to provide minutes of proposed orders in relation to the directions necessary to progress the property dispute to a final hearing by email to the chambers of Justice Aldridge by 4.30 pm on Friday 11 April 2025.

Note: The form of the order is subject to the entry in the Court's records.

Note: This copy of the Court's Reasons for judgment may be subject to review to remedy minor typographical or grammatical errors (r 10.14(b) Federal Circuit and Family Court of Australia (Family Law) Rules 2021 (Cth)), or to record a variation to the order pursuant to r 10.13 Federal Circuit and Family Court of Australia (Family Law) Rules 2021 (Cth).

Part XIVB of the Family Law Act 1975 (Cth) makes it an offence, except in very limited circumstances, to publish an account of proceedings that identify persons, associated persons, or witnesses involved in family law proceedings.

IT IS NOTED that publication of this judgment by this Court under the pseudonym Alobi & March has been approved pursuant to subsection 114Q(2) of the Family Law Act 1975 (Cth).

1. On 8 April 2024, Ms Alobi ("the wife") commenced parenting and property proceedings in the Federal Circuit and Family Court of Australia (Division 2). Mr March ("the husband") filed a Response to Initiating Application on 21 May 2024 seeking the dismissal of the proceedings because he submitted that Australia is a clearly inappropriate forum for hearing the proceedings. This is the hearing of that issue.
2. The proceedings were transferred to Division 1 on 27 May 2024.

1. Despite a short relationship of less than four years, and the absence of significant wealth, the parties have involved themselves in many proceedings in India as the following makes clear.
2. The husband arrived in Australia in 2013. He was granted permanent residency in 2017 and became an Australian citizen in 2019.
3. The husband purchased an apartment in Suburb B in 2017.
4. The parties' relationship began in 2018. They were married in City C, India in late 2018. Shortly after the wedding, the husband returned to Australia. He returned to India for the parties' traditional Indian wedding which took place in 2019.
5. The wife came to live in Australia in 2019.
6. The parties' child, X was born in 2022.
7. In late 2022 the wife and the child went to India and have not returned.
8. The husband filed a petition in India in early 2024 seeking a divorce and other such order the court might make.
9. The wife filed her application in Australia on 8 April 2024.
10. In mid-2024, the husband filed a custody application in India seeking "custody" of the child as well as the following orders:

(i) to pass an order in favour of the petitioner thereby directing the respondent to handover the interim custody of the minor child [X] aged about 2 years [...] during the pendency of the present petition,

(ii) pass a direction to the Respondent to give access to the child over phone calls and video calls and also share the day to day development of the female child, medical report and coordinate for the future of the girl child [X];

(iii) to pass a direction to the respondent for visitation right when the petitioner comes to India from Australia on daily basis,

(iv) pass necessary orders for allowing the petitioner to have unhindered and unsupervised access to the daughter and to bring him to his house and/or any other place,

(v) pass necessary orders granting the Petitioner un-supervised visitation with the minor daughter by way of video conferencing twice a week

(vi) grant regular and exclusive overnight visitation rights of minor daughter [X] to the Petitioner,

(vii) direct the Respondent to not to remove minor girl child [X] from the jurisdiction of this Hon'ble Court.

(viii) Any other or further Order(s), which this Hon'ble Court may deems fit may kindly be passed in favour of the petitioner and against the respondent.

(Annexure "G" to the husband's affidavit filed 3 March 2025, application for interim custody in the Family Court in [City C])

1. The application was brought by the husband's aunt, Ms D, to whom he had granted a special power of attorney.
2. In mid-2024, the husband filed an application in the Family Court in City C, India, seeking orders restraining the wife from continuing her proceedings in Australia. This was dismissed on the same day. The husband filed an appeal in the High Court in India in late 2024. The appeal is yet to be heard and is listed for early 2025.
3. In mid-2024, the wife laid a complaint with the police in City C against both the husband and a number of his relatives "on account of cruelty, harassment, misappropriation of the stridhan under the relevant provisions of Indian penal Code and other Laws" (Annexure "O" to the husband's affidavit filed 3 March 2025, letter from the wife dated 10 April 2024). It was agreed at the hearing before me, that stridhan is property received by a woman during her lifetime over which she retains an absolute right of ownership.
4. The complaint is being investigated and the husband has been required to attend at a specific police station in India.
5. In early 2025 the husband's petition for divorce was found to have been filed in the wrong geographical jurisdiction and the petition was "returned to the counsel for petitioner for filing it in the Court having territorial jurisdiction as prayed as per rules" (Annexure "D" to the husband's affidavit filed 3 March 2025).
6. The husband filed an appeal against that decision in early 2025.
7. It follows that the extant proceedings in India are the custody proceedings being conducted via the husband's aunt and the two appeals. There was no evidence as to the prospects of success in any of these matters or when they are likely to be finalised. The only primary proceeding on foot is for custody.

1. The principles to be applied were summarised by the Full Court in Talwar & Sarai [2018] FamCAFC 152; (2018) FLC 93-855 as follows:
   1. It is convenient first to set out the principles that apply to proceedings between the parties in different courts. If the court is satisfied that Australia is a clearly inappropriate forum in which to determine the proceedings, the court must stay them (Oceanic Sun Line Special Shipping Company Inc v Fay [1988] HCA 32; (1988) 165 CLR 197 ("Oceanic") at 247 - 248; Voth v Manildra Flour Mills Pty Ltd [1990] HCA 55; (1990) 171 CLR 538 ("Voth") at 564; Henry v Henry [1996] HCA 51; (1996) 185 CLR 571 ("Henry")).
   2. It will do so if it is satisfied that those proceedings are "oppressive" or "vexatious" or an "abuse of process". The basis on which the court will do so was explained by the majority in CSR Ltd v Cigna Insurance Australia Ltd (1997) 189 CLR 345 ("CSR") in the following manner at 391 - 392:

It is clear from the rationale for the exercise of the power to stay proceedings and, also, from the words "oppressive", "vexatious" and "abuse of process" in Voth, in Oceanic Sun and in the earlier cases considered in Oceanic Sun , including St Pierre v South American Stores (Gath & Chaves) Ltd, that the power to stay proceedings on grounds of forum non conveniens is an aspect of the inherent or implied power which, in the absence of some statutory provision to the same effect, every court must have to prevent its own processes being used to bring about injustice.

The counterpart of a court's power to prevent its processes being abused is its power to protect the integrity of those processes once set in motion. And in some cases, it is that counterpart power of protection that authorises the grant of anti-suit injunctions. Thus, for example, if "an estate is being administered ... or a petition in bankruptcy has been presented ... or winding up proceedings have been commenced ... an injunction [may be] granted to restrain a person from seeking, by foreign proceedings, to obtain the sole benefit of certain foreign assets". Similarly, as Gummow J pointed out in National Mutual Holdings Pty Ltd v Sentry Corporation, a court may grant an injunction to restrain a person from commencing or continuing foreign proceedings if they, the foreign proceedings, interfere with or have a tendency to interfere with proceedings pending in that court.

(Footnotes omitted)

1. In addition to the inherent power to protect its own proceedings, a court may exercise its equitable jurisdiction to restrain unconscionable conduct or the unconscientious exercise of legal rights. The majority in CSR said at 393 - 394:

One well established category of case in which an injunction may be granted in the exercise of equitable jurisdiction is that involving proceedings in another court, including in a foreign court, which are, according to the principles of equity, vexatious or oppressive. Thus, it was said in Carron Iron Co v Maclaren that "[w]here [there is] ... pending a litigation here, in which complete relief may be had, [and] a party to the suit institutes proceedings abroad, the Court of Chancery in general considers that act as a vexatious harassing of the opposite party, and restrains the foreign proceedings".

In Société Aerospatiale, the Privy Council emphasised that the various cases decided in the nineteenth century with respect to vexation and oppression, including Peruvian Guano Co v Bockwoldt, have continuing significance for the grant of anti-suit injunctions. Those cases establish that the mere co-existence of proceedings in different countries does not constitute vexation or oppression. In particular, Peruvian Guano establishes that "double litigation [which] has no other element of oppression than this, that an action is going on simultaneously abroad, which will give other or additional remedies beyond those attainable in [the domestic forum]" does not amount to vexation or oppression.

More recently, in Bank of Tokyo Ltd v Karoon, Robert Goff LJ pointed out, correctly, in our view, although without specific reference to underlying equitable principle, that foreign proceedings are to be viewed as vexatious or oppressive only if there is nothing which can be gained by them over and above what may be gained in local proceedings. On the other hand, they are vexatious or oppressive if there is a complete correspondence between the proceedings or, in terms used in Carron Iron Co, if "complete relief" is available in the local proceedings.

(Footnotes omitted)

1. Thus, as the Full Court has observed in Lan & Hao (No 2) (2017) FLC 93-795 ("Lan & Hao") at [39], the mere existence of proceedings in two different countries at the same time does not, of itself, constitute vexatious or oppressive conduct.

2. This accords with what was said by the majority in Henry at 590 - 591:

Parallel proceedings in another country with respect to the same issue may be compared with multiple proceedings with respect to the same subject matter in different courts in Australia. In Union Steamship Co of New Zealand Ltd v The Caradale, Dixon J observed of that latter situation that "[t]he inconvenience and embarrassment of allowing two independent actions involving the same question of liability to proceed contemporaneously in different courts needs no elaboration". From the parties' point of view, there is no less - perhaps, considerably more - inconvenience and embarrassment if the same issue is to be fought in the courts of different countries according to different regimes, very likely permitting of entirely different outcomes.

It is prima facie vexatious and oppressive, in the strict sense of those terms, to commence a second or subsequent action in the courts of this country if an action is already pending with respect to the matter in issue. And although there are cases in which it has been held that it is not prima facie vexatious, in the strict sense of that word, to bring proceedings in different countries, the problems which arise if the identical issue or the same controversy is to be litigated in different countries which have jurisdiction with respect to the matter are such, in our view, that, prima facie, the continuation of one or the other should be seen as vexatious or oppressive within the Voth sense of those words.

It does not follow that, because one or other of the proceedings is prima facie vexatious or oppressive within the Voth sense of those words, the local proceedings should be stayed. However, it does follow that the fact that there are or, even, that there may be simultaneous proceedings in different countries with respect to the same controversy is highly relevant to the question whether the local proceedings are oppressive in the sense of "seriously and unfairly burdensome, prejudicial or damaging", or, vexatious, in the sense of "productive of serious and unjustified trouble and harassment". And it also follows that courts should strive, to the extent that Voth permits, to avoid that situation.

(Footnotes omitted)

1. Thus the key issues that the court must consider when a party seeks the stay or dismissal of proceedings on the basis that the court is a clearly inappropriate forum are 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, on the other hand, the overseas proceedings will give rise to additional or other remedies.

2. However, that is not the end of the consideration. The majority in CSR said at 400 - 401:

In cases such as the present, where different issues are involved in the local and foreign proceedings, albeit that the different proceedings arise out of the same sub-stratum of fact, the question is not whether the Australian court is a clearly inappropriate forum for the litigation of the issues involved in the Australian proceedings. Rather, the question must be whether, having regard to the controversy as a whole, the Australian proceedings are vexatious or oppressive in the Voth sense of those terms, namely, that they are "productive of serious and unjustified trouble and harassment" or "seriously and unfairly burdensome, prejudicial or damaging".

(Footnote omitted)

1. In exercising its discretion, the court will also need to take into account the following further matters discussed by the majority in Henry at 592 - 593:

Some of the matters properly to be taken into account in a case such as the present emerge from what has already been written. To start with, no question arises unless the courts of the respective countries have jurisdiction with respect to the parties and their marriage. And if there is a question as to the jurisdiction of the foreign court, it may be necessary to adjourn the local proceedings to enable the foreign court to determine that question. However, if both have jurisdiction, it will be relevant to consider whether each will recognise the other's orders and decrees. If the orders of the foreign court will not be recognised in Australia, that will ordinarily dispose of any suggestion that the local proceedings should not continue. However, if the orders of the foreign court will be recognised in Australia, it will be relevant to consider whether any orders may need to be enforced in other countries and, if so, the relative ease with which that can be done. As well, it will be relevant to consider which forum can provide more effectively for complete resolution of the matters involved in the parties' controversy.

Other considerations include the order in which the proceedings were instituted, the stage which they have reached and the costs that have been incurred. It will also be relevant to consider the connection of the parties and their marriage with each of the jurisdictions and to have regard to the issues on which relief might depend in those jurisdictions. Moreover, it will be relevant to consider whether, having regard to their resources and their understanding of language, the parties are able to participate in the respective proceedings on an equal footing. The list is not exhaustive. Rather, the question whether Australia is a clearly inappropriate forum is one that depends on the general circumstances of the case, taking into account the true nature and full extent of the issues involved.

(Footnote omitted)

1. It is important to note that this is not a balancing exercise. The majority in Regie Nationale des Usines Renault SA v Zhang [2002] HCA 10; (2002) 210 CLR 491 said at 520 - 521:

It was not a question of striking a balance between competing considerations. Rather, it was the task of the Renault companies as applicants on the motion to demonstrate that a trial in New South Wales would be productive of injustice, because it would be oppressive in the sense of seriously and unfairly burdensome, prejudicial or damaging, or vexatious, in the sense of productive of serious and unjustified trouble and harassment.

(Footnote omitted)

1. It is possible that there can be different outcomes as to the parenting and financial issues raised.

1. A registrar of the court directed the parties to appoint a single expert to advise on Indian law. Whilst they were able to agree on the expert, the parties, most unhelpfully, were not able to agree on the questions to be asked. They then separately sought the opinion of the expert on their own questions, some of which (particularly those of the wife) were asked in inappropriate and leading terms. The expert provided two reports. This led to the unhappy submission made by the wife that parts of the expert's opinion not favourable to her should not be accepted.
2. As to whether or not parenting orders made in Australia would be recognised in India, the expert said the following in his report to the wife:

6. Is it fair to write that precedents in Indian family law recognise foreign country's primary jurisdiction in cases where a child, who is a foreign citizen, and mother have established permanent residency and significant ties to that country while the father is a foreign citizen permanently residing in that country including Australia?

Yes, it is fair to state that precedents in Indian family law recognize the primary jurisdiction of a foreign country in cases where a child, who is a foreign citizen, and the mother have established permanent residency and significant ties to that country. This is particularly relevant when both parents are foreign citizens, and the father resides permanently in that country. Indian courts, while considering the child's nationality and the country of residence, prioritize the welfare of the child as the paramount concern. In situations where both parents are citizens of a foreign country and the child has substantial connections to that country, such as citizenship, residence, or familial ties, Indian courts may acknowledge the jurisdiction of that foreign country to resolve matters related to custody, parenting, and other pertinent issues. This aligns with international family law principles that emphasize the child's best interests and the consistency of jurisdictional decisions regarding the child's upbringing.

(Emphasis in original)

(Annexure "C" to the single expert's affidavit filed 6 March 2025, p.9-10 of the report in response to the wife's letter of instruction)

1. In answer to the husband's question the expert said:
   1. Enforceability of Orders made in the Federal Circuit and Family Court of Australia:
   2. Would the Indian Court recognize and/or consider valid the decision of the Australian Court, if the Australian Court:

3.1. Were to find that Australia is not a clearly inappropriate forum to hear the Mother's application for parenting, property and spousal maintenance issues?

If the Australian Court finds that Australia is not a clearly inappropriate forum to hear the Mother's application for parenting, property, and spousal maintenance issues, the Indian Court would generally recognize and consider the decision valid, provided it meets certain criteria under the Indian legal framework.

Under the Code of Civil Procedure, 1908 (CPC), specifically Section 13, a foreign judgment is recognized as conclusive unless it falls under specific exceptions. These exceptions include:

a) The judgment was not pronounced by a court of competent jurisdiction.

b) The judgment was not given on the merits of the case.

c) The judgment is founded on an incorrect view of international law or a refusal to recognize Indian law.

d) The proceedings were not in consonance with the principles of natural justice.

e) The judgment was obtained by fraud.

f) The judgment is in violation of Indian law.

If the Australian Court's decision does not fall under any of these exceptions, the Indian Court is likely to recognize and enforce the decision. The principle of comity and respect of foreign judgments would generally apply, especially if the Australian Court is deemed competent and the proceedings were fair and just. Therefore, if the Australian Court's decision meets the criteria set out in Section 13 of the CPC, the Indian Court would likely recognize and consider it valid.

Moreover, it is important to consider that the child has been residing with her mother in India since she was [an infant]. This prolonged stay in India is significant in determining the child's welfare and may influence the Indian Court's approach to recognizing or enforcing foreign orders related to child custody and maintenance. Additionally, the marriage was solemnized in India, which gives Indian Courts jurisdiction over family matters, including divorce, custody, and maintenance. These factors further support the potential for Indian courts to respect and enforce a foreign judgment, provided it aligns with Indian legal standards and international principles.

(Annexure "B" to the single expert's affidavit filed 7 March 2025, p.13-14 of the report in response to the husband's letter of instruction)

...

The Indian court will not recognize a foreign judgment that violates Indian public policy or statutory provisions. For example, if the Australian court's order disrupts the custody arrangements deemed fit under Indian law or infringes upon the mother's custodial rights under the Hindu Minority and Guardianship Act, 1956, it may be invalidated.

Indian courts prioritize the welfare and best interests of the child in custody and parenting matters, as emphasized in various judgments, including Gaurav Nagpal v. Sumedha Nagpal [(2009) 1 SCC 42]. The Indian court would particularly consider the fact that the child has been residing in India since she was [an infant], which has contributed to her strong ties to India. If the Australian court's orders align with this principle and do not contravene Indian public policy, they are more likely to be considered valid.

(Annexure "B" to the single expert's affidavit filed 7 March 2025, p.15 of the report in response to the husband's letter of instruction)

1. As to property, the expert opined that a court in India may make property settlement orders against jointly held property (s 27 of the Hindu Marriage Act 1955 (India) ("the Hindu Marriage Act")) or may make a lump sum maintenance order secured upon any land (s 25 of the Hindu Marriage Act). This could include property in Australia (Annexure "C" to the single expert's affidavit filed 6 March 2025, p.14 of the report in response to the wife's letter of instruction).
2. Indian courts will not recognise orders made by an overseas court in relation to property in India. Those courts would probably recognise and enforce an Australia decision for property settlement of property in Australia, but it is unlikely that any enforcement would be required on the part of the Indian courts.

1. The wife identified the property available for division as follows:

1. All of these assets, save for the one property in India, are in Australia (save for some relatively minor sums in bank accounts, the wife's motor vehicle and the wife's "investments").
2. The husband's evidence is that the property in India has been sold and that the net proceeds of $34,500 is held in a bank account in India.
3. If that is so, there is no real property in India over which a court in Australia would be purporting to exercise jurisdiction.
4. There is no evidence to the effect that a court in India would make property settlement orders over property in Australia. There is no suggestion that legislation in India empowers the court to make superannuation splitting orders, but even if so, I cannot see how such orders could be enforced in Australia. The availability of such an order is a legitimate jurisdictional advantage for the wife in Australia to pursue (assuming such orders can be made in favour of non‑residents).
5. There is no suggestion that witnesses in India, other than the wife will be called. Any valuation evidence of land, companies, cars or superannuation will be from experts in Australia.
6. There are presently no property proceedings on foot in India. The husband presently has no divorce application on foot. As I understand the expert evidence, the application that had been on foot could have been expanded to seek property orders, but prayers for such orders would need to be stated specifically in the petition for it to be regarded as a property application. The husband has not done so.
7. There is therefore no possibility of conflicting decisions.
8. The husband failed in his claim in India for an injunction restraining the wife from continuing the proceedings. An appeal is pending, but I cannot speculate about the outcome.
9. There is nothing to suggest that the costs of property proceedings in Australia would exceed the costs of such proceedings in India.
10. The assets are limited. The wife has incurred legal fees in Australia of $14,973.97 with an estimate of a further $47,500 being incurred. The husband has paid fees of $27,261.22 and incurred further fees of $5,368 with an estimate of further fees up to $63,450. The combined legal fees will consume a large part of the non-superannuation assets.
11. These fees are in addition to the legal fees in India.
12. This court can expedite the property proceedings and provide alternate dispute resolution within a few weeks by way of a conciliation conference with a registrar of the court.
13. Taking these matters into account, I am quite unable to see how property settlement proceedings in Australia would give rise to parallel proceedings in India or that they would be productive of serious or unjustified trouble and harassment or seriously and unfairly burdensome, prejudicial or damaging. Indeed, I am satisfied that the opposite is the case.
14. Australia is not a clearly inappropriate forum for this dispute. I will make directions for the expedited hearing of the property case.

1. Many of the above considerations apply to the parenting proceedings but there are substantial differences.
2. The child is in India, having lived there since late 2022. That is over two thirds of her life.
3. The wife is in India.
4. There are custody proceedings on foot in India.
5. I have to confess that I do not understand the point of those proceedings. The husband, via his aunt, seeks an order that the child live with him, but he does not seek an order for the return of the child to Australia or propose to live in India himself to care for the child.
6. That, however, is a matter for the courts in India. The evidence is that parenting decisions there are based on the welfare of the child and there is no evidence that the courts in India are not well-equipped to make such a decision.
7. The wife, as I understand it, being a permanent resident of Australia, can return to Australia with the child. She says, by way of some slim evidence and statements made by her lawyer, that she wishes to return to Australia but has no job and nowhere to live.
8. I accept that but do not understand why she did not return after late 2022. At that time, she was employed. Whilst the parties separating during her time India meant it would not be feasible to return to the husband's apartment, she may well have been able to rent premises, albeit with some difficulty.
9. Parenting matters in Australia proceed with evidence from social scientists, usually a psychologist or psychiatrist, who provide opinions on such matters as family dynamics and psychological, emotional, intellectual or other issues affecting the parents or the child.
10. Whilst such reports can be prepared with remote interviews, that is not desirable and is particularly problematic with a child of tender years.
11. The presence of the child in India and the existence of regularly commenced proceedings in India also create difficulties. At the least there would be parallel proceedings on the same issues. Any orders made in Australia would need to be recognised and enforced in proceedings in India and the court there might decline to do so. There is the possibility of conflicting orders.
12. For these reasons, whilst the child remains in India, I am persuaded that Australia is a clearly inappropriate forum for the parenting proceedings. However, given the stated intention to return to Australia, whether it will happen or not, I consider that the appropriate order is not to dismiss the parenting proceedings but to stay them pending the return of the child to Australia or until the filing of an application for orders to facilitate the child's return (such as an application in relation to the child's passport).

I certify that the preceding fifty-four (54) numbered paragraphs are a true copy of the Reasons for Judgment of the Honourable Justice Aldridge.