Burche & Ashly [2025] FedCFamC1F 908 (11 December 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 Burche & Ashly has been approved pursuant to subsection 114Q(2) of the Family Law Act 1975 (Cth).

1. These are my Ex Tempore reasons, which I will correct from the transcript for grammatical errors and to make the spoken word more amenable to reading.
2. On 29 August 2024 the husband filed an application for divorce.
3. There is no challenge by the wife that the Court's jurisdiction has been properly invoked under s 39(3) of the Family Law Act 1975 (Cth) ("the Act"). Indeed, whilst only one of the following factors need be made out for only one party to the marriage, in this case, all three apply and for both parties:
   • Both parties (although only one is required) are Australian citizens;
   • Both parties (even though only one is required) are domiciled in Australia; and
   • Both are ordinarily resident in Australia and have been so for one year immediately preceding the date on which the application for the divorce order was filed in the Court.
4. The parties are also agreed that the grounds of divorce are made out pursuant to s 48 of the Act, being that the marriage has broken down irretrievably and that the parties have lived separately and apart for a continuous period of not less than 12 months immediately preceding the date of the filing of the application for the divorce.
5. The wife opposes the granting of the divorce in this Australian Court saying that Australia is a clearly inappropriate forum. She asks that the husband's divorce application be dismissed.

1. The husband was born in India in 1991. The wife was also born in India and in 1979.
2. It is common ground that the parties were married in Brisbane, Queensland, Australia under the provisions of the Marriage Act 1961 (Cth).
3. The husband's divorce application gives residential addresses for both the husband and wife in South-East Queensland. This is not disputed by the wife.
4. The husband answered "yes" to question 11(a) in the application, which asks whether he regards Australia as his home and intends to live here indefinitely.
5. He did not enter an answer on the wife's behalf to that question, which is not surprising given he could not presume to know her intentions now they are separated. That said, no submission was made that either party intends to leave Australia, which has been their home for more than a decade, in order to live in India.
6. In the divorce application, the husband said he started living in Australia in April 2014. On the material read before the Court for the current application, it is not clear when the wife moved to Australia, but the parties were married in 2015 in Brisbane, Queensland, Australia and lived together in Australia thereafter. She has therefore lived in Australia for at least a decade.
7. It is agreed that upon taking [Australian] citizenship on a date unknown, each spouse renounced their Indian citizenship. The wife holds an overseas recognition of her former Indian citizenship, but it remains she in an Australian citizen at law.
8. The parties have a child, X, born in 2020, who was born in Australia and lives with the mother in South-East Queensland. The child ought be spending time with the father pursuant to best interest orders of this Court.
9. [Per the 2024 application,] the child is apparently in daycare in South-East Queensland and will be "starting school" in South-East Queensland next year.[1]
10. The wife has another daughter from a previous marriage who was born in 2003. She too lives with the wife and the child, X, in South-East Queensland, Australia.
11. The spouses separated on 9 July 2023 in the Commonwealth of Australia and have remained living here thereafter.
12. On 8 November 2023, the wife petitioned the Family Court, City B, India, for a divorce under s 13 of the Hindu Marriage Act 1955 (India). The Husband attached the reasons for judgement, dated 1 October 2025, to his affidavit (which became an exhibit). In the Reasons, it was observed:

... It is stated that the present petition has been filed by petitioner [Ms Ashly] [the wife] through her mother [Ms D] by way of a special power of attorney as the petitioner herself is a permanent resident of Australia.

1. She is, in fact, an Australian citizen, but it is correct that she also permanently resides here.
2. After a careful analysis, the Principal Judge, Family Court, City B, India held:

...this court is of the view that the present petition is not maintainable before this Court as this Court does not have the territorial jurisdiction to entertain the present petition. Accordingly, the [husband's] application at hand is allowed and the petition filed by the petitioner [the wife] is rejected with no order as to costs.

1. The wife says she has appealed this decision.
2. Even if the wife is successful on her appeal and is then able to petition the relevant Indian Family Court for a divorce, that simply means there would be two fora in which these parties could apply for divorce - India and Australia.
3. If that comes to fruition, it does not detract from the principles engaged in the current consideration being whether Australia is a clearly inappropriate forum to decline the exercise of jurisdiction and grant a divorce.

1. In addition to the divorce application before this Australian Court, the parties also have property and parenting proceedings which have been instituted in this Court, initially in Division 2 of the Federal Circuit and Family Court of Australia and then transferred to Division 1 on 17 September 2025.
2. The parties also have or had some form of property settlement in India, as well as the property proceedings on foot here.
3. The husband says (without demur from the wife) the majority of their property pool is located in Australia, including the former matrimonial home in South-East Queensland. According to the husband, the wife commenced proceedings in India in or about 2018 which were finalised, he says, on a commercial basis by way of a compromised deed. The deed provided for the transfer of land to the wife, which he says was affected.
4. It will be an argument for another day in the property proceedings what, if anything, I make of any property in India and the deed issue. The parties will be able to put on expert evidence to explain that to the Court. But that is for another day and does not dispose of the question as to whether Australia is a clearly inappropriate forum for the purposes of the divorce application.
5. Whilst the parenting dispute was not before the Court on the day of the divorce forum hearing, mindful of the overarching principles in s 67 of the Federal Circuit and Family Court of Australia Act 2021 (Cth), the Court proposed to list the parenting trial as expeditiously as possible. That is in circumstances where the mother is apparently not complying with the Orders for the child to spend time with the father. I gather she says he poses an unacceptable risk of harm to the child. Again, I gather the father denies her allegations and says the mother will not countenance the child having a relationship with him.
6. An expeditious parenting trial was supported by the Independent Children's Lawyer ("ICL") and each of the parties. Thus, the parenting aspect of one of their justiciable controversies is listed for trial in the Brisbane Registry of this Commonwealth Court commencing on 20 January 2026 for three days.
7. The ICL's preliminary position on the parenting is that the child's residence should change from the mother to the father.
8. The wife may also have some proceedings or complaint in India about alleged fraud on the part of the husband and perhaps his family in India, but it is hard to see the relevance of that for this application for divorce. I am sure I will hear about that in the property and/or parenting proceedings, if relevant. The wife's experienced legal representative made no submissions about this at the divorce hearing.

1. The husband relied upon his:
   • Divorce application filed 29 August 2024;
   • Affidavit filed 17 November 2025;
   • Amended Response to the wife's Amended Application (to stay the divorce hearing) filed 3 December 2025; and
   • An outline filed 4 December 2025.
2. The wife relied upon her:
   • Amended Application in a Proceeding filed 24 November 2025.
3. By Order of 23 September 2025, she was to file one affidavit as follows:

1. The applicant/wife file and serve, by no later than 4.00pm on 24 October 2025, the following:

(a). One consolidated affidavit, of no more than 15 pages and no more that 10 annexures, including all evidence upon which she seeks to rely in support of her contention that Australia is a clearly inappropriate forum;

(b) One affidavit, of no more than 10 pages and no more that 5 annexures, of any other witness she intends to rely upon in support of her contention.

1. She failed to do so.
2. Ultimately and notwithstanding the wife's failure to comply with the above Order, I granted the wife leave to rely upon:
   • Two affidavits both filed 4 December 2025, one at 3:05 pm and one at 3:16 pm.
3. I am aware from looking at listing orders, that the wife also has a Notice to Intervene from people who seek to become parties (as best I understand it). The Notice was not read in the wife's case with respect to the divorce and seems to have a listing date with respect to property before a Judicial Registrar next week.
4. On 30 September 2025, the wife filed a Notice of Discontinuance with respect to her application resisting the divorce. I was told, as evidence from the Bar Table, that was filed in error. Yet, the wife has taken no steps whatsoever to have that notice rescinded or otherwise withdrawn.
5. Confusingly, her Amended Application in a Proceeding sought the following order:
   1. My Notice of Discontinuation To be accepted filed on 30 Sep, Served on OP 30 September , in order to expedite the matter to an urgent trial due to the ongoing complications and delays,
6. But that sits at odds with the following order also sought by her:
   1. Entire Divorce proceedings be dismissed due to An Abuse of process inappropriate Forum and Fabricated Evidences produced by Father.
7. Irrespective of the seemingly contradictory approach, the wife sought to be heard on her opposition to the divorce application. I hasten to add the wife's Amended Application was not prepared by the wife's legal representative, who appeared at the divorce hearing earlier this week.
8. In Chambers, I marked the annexures to the parties' affidavits as exhibits, as required by r 8.15(3)(e) of the Federal Circuit and Family Court of Australia (Family Law) Rules 2021 (Cth).
9. At one point in the hearing, I raised the possibility of adjourning the divorce application to the parenting trial so each party could be subjected to cross-examination. The wife's solicitor latched onto that, (the adjournment idea), but ultimately, I declined to follow such a course for the reasons given at the time. In short, the parties were at the Court for the hearing whereby the husband sought a divorce order and the wife resisted same.
10. It ought not be lost on the parties that the husband's application for divorce was filed more than a year ago, in August 2024. The wife has had ample opportunity to prepare her forum argument, noting she bears the onus in persuading me that I ought decline to exercise the jurisdiction set out in s 39 of the Act on the grounds set out in s 48 of the Act.
11. Further, the wife was granted the significant indulgence of being permitted to rely upon not one, but two, affidavits filed contrary to the filing directions and filed significantly late.

1. It is common ground that the Court's jurisdiction has been enlivened; s 39 of the Act. Section 48 of the Act is in the following terms:

(1) An application under this Act for a divorce order in relation to a marriage shall be based on the ground that the marriage has broken down irretrievably.

(2) Subject to subsection (3), in a proceeding instituted by such an application, the ground shall be held to have been established, and the divorce order shall be made, if, and only if, the court is satisfied that the parties separated and thereafter lived separately and apart for a continuous period of not less than 12 months immediately preceding the date of the filing of the application for the divorce order.

(3) A divorce order shall not be made if the court is satisfied that there is a reasonable likelihood of cohabitation being resumed.

1. It is also common ground that the requirements contained in this provision are made out.
2. In turn, no one cavilled with the well settled proposition that once jurisdiction and the grounds for divorce are established, this Court has no discretion not to grant the divorce unless the Court is persuaded to decline an exercise of jurisdiction, for example, by staying or dismissing the divorce application on inappropriate forum grounds.
3. That is, essentially, the wife's case.
4. In Holcomb & Holcomb [2022] FedCFamC1F 580 at [29] a different Judge of this Court reminded as follows:

There is a prima facie right on the part of the husband [as was also the case in Holcomb] to a divorce under Australian laws, given that he is an Australian citizen and the provisions of the Family Law Act 1975 (Cth) provide for divorce to be available to any person who is an Australian citizen: s 39(3)(a) of the Family Law Act 1975 (Cth).

1. That is the case here. However, that the prima facie right to continue his proceedings in Australia will yield to a finding (if made) that the local court is a clearly inappropriate forum.
2. Voth v Manildra Flour Mills Pty Ltd [1990] HCA 55; (1990) 171 CLR 538 ("Voth") at 554 and 576, and as re-stated in Henry v Henry [1996] HCA 51; (1996) 185 CLR 571, says:

First, a plaintiff who has regularly invoked the jurisdiction of a court has a prima facie right to insist upon its exercise. Secondly, the traditional power to stay proceedings which have been regularly commenced, on inappropriate forum grounds, is to be exercised in accordance with the general principle empowering a court to dismiss or stay proceedings which are oppressive, vexatious or an abuse of process and the rationale for the exercise of the power to stay is the avoidance of injustice between parties in the particular case. Thirdly, the mere fact that the balance of convenience favours another jurisdiction or that some other jurisdiction would provide a more appropriate forum does not justify the dismissal of the action or the grant of a stay. Finally, the jurisdiction to grant a stay or dismiss the action is to be exercised "with great care" or "extreme caution".

...

...a stay should be granted if the local court is a clearly inappropriate forum, which will be the case if continuation of the proceedings in that court 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".

1. Accordingly, to grant the wife's application, the Court must:

...find that a continuation of the divorce proceedings... "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 or [sic] serious and unjustified trouble and harassment".[2]

1. When I refer to Australia being or not being a clearly inappropriate forum in these reasons, I do so as shorthand for the extrapolation in the above extracts.
2. Separately, in Bakshi & Mahanta (No 2) [2022] FedCFamC1A 90; (2022) 367 FLR 177 ("Bashki"), the Appeal Division of this Court held as follows at [51]:

Despite some earlier suggestion that the local court should engage in some analysis of the foreign litigation (for example Henry at 592-593; Navarro at [64], it now appears settled that the focuses on the inappropriateness of the local court. The focus is not upon the appropriateness or comparative appropriateness of the foreign forum, but on assessing whether there are enough factors indicating that the local forum is clearly inappropriate, in which case a stay should be granted: Regie Nationale Des Usines Renault SA v Zhang [2002] HCA 10; (2002) 210 CLR 491; Navarro at [166] citing Martin Davies et al, Nygh's Conflict of Laws in Australia (Lexis Nexis Butterworths, 8th edition, 2010) at [8.29] (repeated in the 10th edition)...

1. This is an important principle to bear in mind as some of the wife's submissions concentrated on why (from her perspective) Indian divorce and property proceedings might give her a better outcome.
2. It is common ground that the wife bears the onus of establishing that this Court is a clearly inappropriate forum: Bakshi at [52] citing Navarro at [188].
3. In Deslandes & Deslandes [2015] FamCA 913, Kent J set out the factors relevant to the determination of whether Australia is a clearly inappropriate forum:
   1. Whether or not Australia is a clearly inappropriate forum depends on an assessment of the following (non-exhaustive) factors (derived from Lord Goff's factors in Spiliada) as approved of in Voth and as added to by Henry at 592-593:
      1. Factors of convenience and expense, such as the location of witnesses;
      2. Whether, having regard to their resources and understanding of language, the parties are able to participate in the respective proceedings on an equal footing;
      3. The connection of the parties and their marriage with each of the potential jurisdictions and the issues on which relief may depend in those jurisdictions;
      4. Whether the other potential forum will recognise Australian Orders and vice-a-versa and the ease of enforcement in each country;
      5. Which forum may provide more effectively for a complete resolution of the matters involved in the parties' controversy;
      6. The order in which each of the proceedings were instituted, the stage which they have reached and the costs incurred in each jurisdiction;
      7. The governing law of the dispute;
      8. The place of residence of the parties;
      9. The availability of an alternative forum; and
      10. Any legitimate juridical advantage to litigating in either jurisdiction.
4. Those factors were adopted by Aldridge J in the appellant jurisdiction of this Court in Desai & Desai [2024] FedCFamC1A 170 ("Desai") at [21].

1. The wife's submission are encapsulated as follows:
   • The Family Court in India could hear the matter - but the relevant Indian Family Court has already found it lacks jurisdiction with respect to the wife's divorce petition;
   • The wife's daughters' rights will be prejudiced if the divorce is granted here - but there is nothing stopping either of the adults in this matter from bequeathing whatever they want, to whomever they want, under Queensland succession laws;
   • The husband has property interests in India - if so, that can be included in the asset pool in any property proceedings here, but really does not assist in explaining why Australia is an inappropriate forum for the divorce;
   • The wife is in the process of securing orders from an Indian Court about property, which can be enforced here - if she is granted such orders, then she can bring the relevant enforcement proceedings for this Court's consideration. But again, that has little to do with the divorce application;
   • There are consent orders in India with respect to the property - this may be the deed of compromise. Whatever it may be, the parties will be able to tell the Court whatever they want about that should the property trial proceed;
   • Divorce is an interference with her rights, which seems to be a reference to her apparent rights in India - but divorce in Australia will have no impact whatsoever on the parenting proceedings to be heard next month, or the property proceedings should they proceed to trial here, or any estate planning the wife (or husband) may wish to engage in, in this jurisdiction;
   • The balance of convenience requires the matter be adjourned or the divorce application be stayed pending the parenting and property proceedings in India - the issue of the wife's rights and preferences has already been addressed; and
   • The wife has appealed the decision of the Indian Court finding it lacked jurisdiction to entertain the wife's divorce petition - even if she succeeds on appeal, that just means two fora will be available to grant a divorce, but that does not determine (or assist in determining) whether Australia is a clearly inappropriate forum to entertain the husband's divorce application.
2. The husband submitted this:
   • The parties were married in Brisbane and lived as man and wife from 2015 to 2023 here, in Australia - that is uncontroversial;
   • The test is not whether Australia is the most appropriate forum but whether Australia is clearly inappropriate - that too is uncontroversial;
   • He denied that an Australian divorce will prejudice the wife's property rights in India because the proceedings are already on foot there and cannot be terminated on that basis - the parties put on no expert evidence to assist with this, but this Australian Court can include overseas assets and liabilities in the asset pool (assuming Stanford & Stanford [2012] FamCAFC 1; (2012) 247 CLR 108 ("Stanford") is made out) and can make orders in personam directing a party to do things with overseas assets and liabilities, or not. Further, the fact of a divorce here will have no effect on any other proceedings in this Court, or the parties' abilities to undertake estate planning here;
   • The Indian Court has declined jurisdiction with respect to the divorce - that is so; and
   • The wife filed an application for a nullity of the marriage but subsequently withdrew that - I am not sure what to make of this other than, perhaps, she had, at one point, acceded to this Court's jurisdiction with respect to the divorce application. Nothing turns on this.
3. In reply, the wife's legal representative said that if there is a divorce under the Act, the Indian proceedings cannot proceed any further. The husband disputes this. There is no expert evidence before me to support either contention, and I say more about the importance of foreign law later in these Reasons. I also refer to the capacity of this Court to include overseas property in the parties' property pool.

Factors of convenience and expense, such as the location of witnesses;

1. The parties were before the Court earlier this week and made submissions on the divorce application. Given the parties reside in South-East Queensland, the convenience and expense of determining the divorce matter in Brisbane does not point to Australia being a clearly inappropriate forum in the sense that concept is understand as set out under the "Legal Principles" heading earlier.
2. The wife also annexed various statements from witnesses to her affidavits (which became Exhibits 2 and 3) but no submissions of any force, if at all, were made about these statements. I have reviewed them, and they do not assist in establishing Australia is a clearly inappropriate forum for hearing the divorce application.
3. The child of the parties is on an airport watchlist. This could cause difficulties for the parties if they were required to travel to India for divorce proceedings (even though the wife's petition was dismissed). I also accept it would involve cost to the parties to travel to India for same. That said, they seem to have been able to engage in the wife's petition for a divorce without travelling there.
4. The parties have likely spent money on litigation in India, but it is hard to see how that supports a conclusion that Australia is a clearly inappropriate forum.
5. With both parties living in Australia and with the marriage solemnised here, it is hard to see how Australia is a clearly inappropriate forum in the Voth sense from a convenience and expense perspective.

Whether, having regard to their resources and understanding of language, the parties are able to participate in the respective proceedings on an equal footing;

1. Both parties appeared via experienced legal representatives at the divorce hearing. No complaint was made about an inequality of alms. Each representative said all they relevantly could on the case and evidence they had.
2. I watched the wife active in her instructions to her experienced legal representative and I watched her command over the material.
3. Nothing under this sub-heading tends to a view that Australia is a clearly inappropriate forum for the divorce.

The connection of the parties and their marriage with each of the potential jurisdictions and the issues on which relief may depend in those jurisdictions;

1. The parties married under the law of the Commonwealth of Australia and separated in Australia.
2. They are citizens of Australia and reside here. The former matrimonial home is here, and the parties' daughter (and the wife's older daughter) reside here. The child X will start school next year in South-East Queensland.[3]
3. They will have a parenting trial in this Court next month. The property dispute is also currently before the Court and will be mentioned for a progress report in the parenting trial next month.
4. Both parties are in paid remuneration outside of their households in South-East Queensland.
5. The present case is materially different to Talwar & Sarai [2018] FamCAFC 152; [2018] FLC 93-855 ("Talwar"). There, the parties married in India. The husband thereafter returned to Australia and not long after that withdrew his sponsorship of the wife's Partner Visa. The wife arrived in Australia a few months later but the husband refused to have anything to do with her. She returned to India not long after that, where she remained residing. Thereafter, a judge of the Family Court of India granted an injunction restraining the husband from continuing his divorce proceedings in Australia. Here, the Indian Court has found it lacked jurisdiction to entertain the wife's divorce petition. In Talwar, the wife continued to live in India, whereas both parties here, live in Australia.
6. I accept the parties were each born in India but have no idea when they were last there. I accept they likely have family and connections to India too. However, there is no evidence before me that they could bring parenting proceedings there and the divorce application has been dismissed. There is also no evidence before me that an Indian Family Court can deal with the Australian assets and liabilities.
7. The parties and their marriage in this matter are clearly and solidly connected to Australia. This Court can provide relief on all of the parties three justiciable controversies being divorce, property and parenting. These factors militate against Australia being a clearly inappropriate forum.

Whether the other potential forum will recognise Australian Orders and vice-a-versa and the ease of enforcement in each country;

1. In Desai, the court recorded that the expert evidence before it was to the effect that an Australian divorce order will not be recognised in India.
2. However, there is no expert evidence before this Court in this matter to suggest that is so.
3. Importantly, foreign law is a question of fact and must be established by evidence. Decisions of other judges about the law and other countries have no precedential value. As was said in Talwar at [36]:

... In Neilson v Overseas Projects Corporation of Victoria Ltd (2005) 223 CLR 331 ("Neilson"), Gummow and Hayne JJ said at 370:

1. The courts of Australia are not presumed to have any knowledge of foreign law. Decisions about the content of foreign law create no precedent. That is why foreign law is a question of fact to be proved by expert evidence. And it is why care must be exercised in using material produced by expert witnesses about foreign law. In particular, an English translation of the text of foreign written law is not necessarily to be construed as if it were an Australian statute. Not only is there the difficulty presented by translation of the original text, different rules of construction may be used in that jurisdiction.

(Footnote omitted)

1. Whilst the wife in this matter, claimed a divorce in Australia will disadvantage her in Indian proceedings, the husband denied this. There is no expert evidence before me in this matter about the effect of an Australian divorce on the apparent Indian property proceedings. That does not help the wife - who bears the onus - in establishing Australia is a clearly inappropriate forum.
2. In any event, if it is the case that an Australian divorce order is not recognised in India, then that may be a potential disadvantage to the parties in being divorced in one country but not another. But the Indian Court found it lacked jurisdiction in any event.
3. The fact of divorce will have no detrimental effect on the parenting or property proceedings on foot here. With property proceedings on foot, time limits arising after divorce in the Act are otiose.

Which forum may provide more effectively for a complete resolution of the matters involved in the parties' controversy;

1. This Court can resolve the divorce application, which is its own, stand-alone application, source of jurisdiction and head of power. The divorce application is not dependent on, or intertwined with, the parenting dispute, which will be heard next month or the property proceedings that are currently on foot in this Court.
2. This Court will hear the parenting dispute next month. This Court will be able to deal with all aspects of the parties' property dispute in due course and make in personam orders with respect to what the parties must or must not do (if required) with respect to any property in India.
3. The husband deposed that the majority of the asset pool comprises the former matrimonial home in South-East Queensland. The wife took no issue with that proposition in either of her affidavits or in submissions.
4. There is no expert evidence before the Court that indicates the Indian Family Court can deal with all of the parties' disputes: the wife's divorce petition was dismissed; there is no expert evidence that parenting proceedings can be instituted there; and, no expert evidence that the Indian Court can deal with all aspects of the property dispute on foot in this Court, including any orders that may be made concerning the former matrimonial home in South-East Queensland.
5. None of these considerations assist in indicating Australia is a clearly inappropriate forum.

The order in which each of the proceedings were instituted, the stage which they have reached and the costs incurred in each jurisdiction;

1. The wife filed her petition for a divorce in India first in time (2023 for her and 2024 for the current application before this Court) but her petition for divorce in India has been dismissed. Whatever happens with her appeal does not detract from the question as to whether Australia is a clearly inappropriate forum to hear the divorce application initiated here.
2. Indeed, the hearing about the divorce has been held and these reasons dispose of this specific and discrete dispute.

1. The parties' marriage was governed by Commonwealth of Australia law: the Marriage Act 1961 (Cth).
2. The hearing of the husband's divorce application in this Court is also governed by the laws of the Commonwealth of Australia: the Family Law Act 1975 (Cth).

1. That is Australia, and has been for at least a decade.

1. The wife puts on no expert evidence about this, save, as evidence from the Bar Table, that she has appealed the dismissal of her divorce petition in India. But this Court has no evidence about when that may be heard.
2. In the meantime, this Court is available, can and has heard the divorce [application], and will hear the parenting proceedings and potentially the property proceedings [should it proceed to trial].

Any legitimate juridical advantage to litigating in either jurisdiction.

1. A submission was made by the wife that in India, divorce and property proceedings go hand-in-hand - but somehow the wife has some form of property proceedings on foot even though her divorce petition has been dismissed.
2. The husband says India provides a juridical advantage to the wife in that India "provides a blame on a person with respect to a divorce, as opposed to the no fault divorce in Australia".
3. The wife deposed in her 3:05 pm affidavit, at paragraph 15, as follows:

The respondent is knowingly and deliberately proceeding with divorce proceedings in Australia while Indian proceedings remain pending and are yet to be adjudicated.

1. However, the Indian Family Court dismissed the wife's petition for a divorce for lack of jurisdiction. Even if the wife is successful on her appeal at some point in the future, it remains that the question before this Court is to ask whether Australia is clearly an inappropriate forum for the husband's divorce application.
2. The wife's paragraph 15 goes on:

This conduct is undertaken solely to defeat my lawful claims in India and to conceal global property from the Australian court. Such parallel proceedings constitute an abuse of process and will cause me significant harm and serious prejudice.

1. These are sweeping assertions which lack particularity as to the underlying facts, or allegations which are said to give rise to these broad conclusions.
2. The wife's paragraph 16 says:

No Property Rights After Divorce Under Indian law for Women, once divorced, A woman cannot Claim property, maintenance, and Streedhan matrimonial rights. The Respondent is fully aware of this legal position. By seeking Property & divorce proceedings in Australia under the law of 'irretrievable breakdown of marriage,' the Respondent is attempting to eliminate my Locus Standi while achieve two Major objectives:-

A) Avoid providing me, [Ms Ashly], my rightful share of property; and

B) Avoid honouring the compromise deed which grants me the right to reside in the [Suburb E] matrimonial home.

(emphasis per original)

1. The fact of an Australia divorce will have no detrimental impact on the wife's ability to run her parenting case here (as will occur next month), nor the property proceedings, nor to conduct any estate planning in which she may wish to engage.
2. The property proceedings on foot in Australia will be able to look at the entirety of the parties' property whether in Australia or otherwise and make and determine whether there ought be a property settlement (Stanford) and if so, what is just and equitable.
3. This Court does not have any difficulties in making property orders - be it a s 79 adjustment, or spouse maintenance, and/or sole use and occupation order and the like - when parties are divorced.
4. The husband disputes that a divorce would prevent the wife from agitating whatever her property rights may be in India. That can all be the subject of expert evidence in a property trial in Australia. The parties will also be able to make submissions to this Court (and put on expert evidence) about what ought be made of the compromise deed.
5. But again, the scope and conduct of the property proceedings are a step away from the current question about whether Australia is a clearly inappropriate forum for the purposes of the jurisdictionally standalone divorce application.
6. The wife's affidavit filed at 3:16 pm sheds little light on how Australia may be a clearly inappropriate forum for the divorce application. It speaks in a general way about how the property and divorce petitions prejudice the wife's and her daughters' rights. It is clear though that the fact of a divorce will have no prejudice to her prosecuting her rights and entitlements in Australia and including overseas property in any asset pool.
7. Further, if the divorce is granted here, it does not depend on the property and/or parenting proceedings and vice-a-versa. They are all separate heads of power, and the proceedings [divorce and property/parenting] have separate file numbers.
8. It is hard to see how the fact of divorce under Australian law, where all parties and their child reside, could prejudice the wife's property rights and entitlements in this Court where overseas assets, liabilities and financial resources can be included in the balance sheet.
9. It will also be a matter for each of the parties under Australian law what provision they make for their respective daughters. That is something they are free to do at any time under state estate law.
10. There is no expert evidence before me that the Indian Family Court can deal with the assets, liabilities and financial resources in Australia and, the wife's petition for divorce was dismissed for lack of jurisdiction.
11. There is advantage, at least to the husband, that the Australian application for divorce can be (and has been) heard and the divorce proceedings resolved as a standalone proceeding independent of the parties other parenting and property disputes.
12. On all and any of those factors, it is hard to see how Australia is a clearly inappropriate forum.

1. For the above analysis and reasons given, I am well persuaded Australia is not a clearly inappropriate jurisdiction nor that the current proceedings are vexatious or oppressive in the relevant sense. I am therefore persuaded to exercise jurisdiction.
2. Accordingly, the father's application for a divorce will be granted.
3. As discussed with and agreed to by the wife's solicitor, her Amended Application in a Proceeding filed 24 November 2025 will be dismissed. As also discussed with the wife's solicitor, the father's alleged use of material outside of these proceedings (her order 1), are matters that can be the subject of cross-examination and submissions (if relevant) at the trial next month (and/or the property trial whenever that may proceed). Issues of alleged family violence can also be raised at trial where relevant.
4. Both parties seek their costs. The rules of the court provide a path for them to make any such application if they choose.
5. I will vacate the hearing before Judicial Registrar Brooks next week with respect to the divorce.
6. There is a separate hearing next week before a different Judicial Registrar with respect to the Notice to Intervene in the property proceedings.
7. For these reasons I will make the following orders [now set out at the start of these Reasons].

I certify that the preceding one hundred and twenty (120) numbered paragraphs are a true copy of the Ex Tempore Reasons for Judgment of the Honourable Justice Brasch.

[1] After the delivery of these Reasons, the wife contacted chambers saying:

I respectfully request that the court record be corrected in parenting matter.

The child is a Prep year student and currently attends C School.

The child will be commencing Year 1 next year, having completed Prep class this year.

That is not in evidence in the material that was read before the Court on the divorce hearing. The reference to day care and school next year is sourced from the husband's 2024 divorce application question 28.

[2] Navarro v Jurado [2010] FamCAFC 210; (2010) 44 Fam LR 310 at [192] ("Navarro").