JSBASHIR
FAMILY LAW ACT 1975
IN THE FAMILY COURT OF AUSTRALIA
AT MELBOURNE No.9435 of 1994
BETWEEN:
MUNTAZAR BASHIR
(Husband)
and
NASREEN AKHTAR BASHIR
(Wife)
CORAM: THE HONOURABLE JUSTICE KAY
DATE OF HEARING: 1 FEBRUARY 1995
DATE OF JUDGMENT: 1 FEBRUARY 1995
REASONS FOR JUDGMENT
APPEARANCES:
Mr O'Shannessy of Counsel instructed by Riordan & Partners, DX
63012, Shepparton, appeared on behalf of the husband.
Mr C. Cohen, Solicitor of the Legal Aid Commission, DX 228
Melbourne, appeared on behalf of the wife.
These are proceedings for dissolution of marriage brought by
Muntazar Bashir against Nasreen Akhtar Bashir. The parties were
lawfully married at Nottingham in the United Kingdom on 30 August
1991. I am satisfied that the proceedings have been served in
accordance with the Family Law Rules. The husband was born in
Pakistan on 24 July 1967, he is a medical practitioner. He and the
wife lived in the United Kingdom. They separated on 26 January
1992. They have lived separately and apart since that time. There
is no reasonable likelihood of cohabitation being resumed.
They have a child Danyal Karim Bashir born 17 October 1992. The
child lives with the wife.
The husband asserts in his application for dissolution of marriage
that he is domiciled in Australia. He asserts that he entered
Australia on 28 January 1994 and intends to remain here
permanently having abandoned any intention of returning to England
or Pakistan to live permanently.
The wife challenges the application for dissolution on the basis
of the Court's jurisdiction to grant the dissolution. Specifically
she says that the husband is not domiciled in Australia. The
Court' s jurisdiction to grant a decree of dissolution of marriage
is established by Section 39(3) of the Family Law Act which
provides as follows:
Proceedings for a decree of dissolution of
marriage may be instituted under this Act if,
at the date on which the application for the
decree is filed in a court, either party to the
marriage:
(a) is an Australian citizen;
(b) is domiciled in Australia; or
(c) is ordinarily resident in Australia and
has been so resident for I year
immediately preceding that date.
These proceedings were instituted on 28 September 1994. As at that
date neither the husband nor the wife were Australian citizens,
and neither were ordinarily resident in Australia within the
meaning of the section. The wife was not domiciled in Australia.
The husband asserts that he was so domiciled. The wife's denial of
the husband's domicile is set out in paragraph 1(iii) of her
answer. She states as follows:
The husband is neither an Australian citizen
nor has he been resident in Australia for 12
months proceeding the date of filing the
application. Furthermore I have been informed
by the Nottingham Health Authority that it is
the husband's intention to return to the United
Kingdom in February 1995. He is on a training
program in Australia and consequently I do not
believe that it is his intention to permanently
reside in Australia.
It is likely that when the husband applied for
a visa to enter Australia for a limited period
from January 1994 until January 1995 he did not
state that he intended to remain in Australia
permanently or indefinitely. l do not believe
the husband has subsequently made an
application for permanent residence in
Australia and I therefore deny that he is
domiciled in Australia.
I require the husband to provide a copy of his
Australian visa application to clarify his
status in Australia.
The husband in response to the assertions of the wife states:
I am employed as a doctor by the Goulburn
Valley Base Hospital at Shepparton. My contract
is for the period from February 1994 to
February 1996. At the end of that time my
contract will be due for re-negotiation and it
has been indicated to me that subject to the
approval of the Medical Practitioners Board of
Victoria and approval of the Department of
Immigration of Australia my contract will be
extended.
I have a temporary registration with the
Medical Practitioners Board and I have now
applied for an extension until February 1996
during which time I propose to apply for full
registration as soon as possible. I am
confident that my admission by the Medical
Practitioners Board of Victoria will be
successful on the basis that my employers
support me and I have indicated a desire to
remain permanently in Australia.
I have met and am engaged to be married to an
Australian citizen. I propose to remarry in the
event that my application for dissolution of
marriage is successful as soon as possible. I
do not have any arrangement with the Nottingham
Health Authority to return to the United
Kingdom in February 1995 or at any other time.
The training program to which my wife refers is
a 3 year program which I commenced after my
residency for the purpose of training to
practice as a general practitioner. I have
completed 2l/2 years of that that 3 year
program. Subject to the completion of
examination formalities and the approval of the
Goulburn Valley Base Hospital Board of
Management I expect to receive the approval of
the Medical Practitioners Board of Victoria to
be admitted to practice.
At the time I left England my future was
uncertain but having been in Australia now for
almost a year I have no hesitation in saying I
will not be returning to the United Kingdom and
that Australia is my future permanent home. I
acknowledge that I have to satisfy the
Department of Immigration but if my marriage
proceeds and my approval is received from the
Medical Practitioners Board of Victoria I am
led to believe that will be a formality only.
The husband's evidence is unchallenged in these proceedings. In my
view the necessary elements of the acquisition of a domicile of
choice have been established, namely, the intention and the
carrying out of the transfer to the place of domicile of choice
(see cases discussed in Barnett v Barnett (1980), FLC 90-683).
There is significant line of authority that one can obtain a
domicile of choice even as an illegal immigrant. (see Lim v Lim
and Titcumb 1973 VR 370, Salacup v Salacup (1993) FLC 92-431, In
re Marriage of Dick (1993) 15 Cal.App.4th 44 [8 Cal.Rptr. 2d
743]).
In my view the husband's material discloses that he had, by the
time he filed these proceedings, abandoned his domicile of origin,
abandoned his subsequent domicile of choice in the United Kingdom,
and had acquired a domicile of choice in Australia.
The additional evidence as to his domicile is set out in paragraph
5 of his application for dissolution of marriage.
The next basis upon which the wife challenges the granting of a
decree of dissolution of marriage concerns the arrangements that
have been made in respect of the child. She complains that the
accommodation she presently provides for herself and the child is
inadequate. She complains that because the child has no permanent
abode, the educational needs of the child could become a potential
problem. She complains that the child has health difficulties. She
complains that the husband has not made any attempt to have any
significant access to the child at all during the child's life.
She complains that the husband has not met his maintenance
obligations, there being an order for 100 pounds per week from
July 1993 to January 1994 and 80 pounds per week from February
1994. She says that payments have only been received from August
1994, and that she personally has inadequate amounts to support
herself and the child.
The husband asserts that access is difficult and he does not
really suggest that there is likely to be any in the future. He
says he is making payments at the rate of $300 per month and he
proposes to continue to do so. In response to the wife's answer
the husband says that it took him some several months in Australia
to establish himself having regard to limited financial resources.
He made no payments for six months. He had previously sent his
wife 2,000 Pounds. He has been making voluntary payments since
taking legal advice. He has no objection to paying maintenance and
is now in a position to do so. Until he is told exactly how much
he has to pay he is going to continue to pay $300 per month.
Pursuant to the provisions of Section 55A a decree nisi for
dissolution of marriage pronounced does not become absolute unless
the Court is satisfied that proper arrangements in all the
circumstances have been made for the welfare of the children who
have not attained the age of 18 years, or that there are
circumstances by reason of which a decree nisi should become
absolute even though the Court is not satisfied that such
arrangements have been made.
There is one child of the marriage. I am certainly not satisfied
that proper arrangements have been made in all the circumstances
for the welfare of the child. The child is being denied the
society of a relationship with its father. The father is busy
building a career for himself and concerning himself focussing on
his own economic needs without focussing adequately on the
economic needs of the child. I would have thought it does not
require much imagination to work out that a child needs support
and that the support being suggested, being voluntarily paid of
something like $70 a week, is likely to be grossly inadequate. I
do not have details of the father's full financial position. The
only evidence I have is he is working as a medical practitioner.
However, in my view there are circumstances by reason of which the
decree should become absolute, notwithstanding I am not so
satisfied. The parties live at opposite ends of the earth. The
husband has now given an undertaking through his affidavit that he
will meet minimal maintenance requirements until he is called upon
to meet others. He is in secure employment where his wages can be
garnisheed in the event that a maintenance order is forthcoming.
Any proceedings in respect of the property of the parties can be
conducted in Australia if need be, through agents. The wife has
remedies here to seek orders in respect of property both here and
overseas although the husband suggests there is not anything of
any significance overseas other than that which is occupied by his
mother. That may or may not be so.
It may well be that the wife is able to litigate in England in any
event in respect of the foreign decree. I can see no social useful
reason in perpetuating this shell of a marriage.
I find the parties were lawfully married at Nottingham in the
United Kingdom on 30th day of August 1991. I find that the
applicant husband was at the date of institution of the
proceedings domiciled in Australia. There will be a decree nisi
for dissolution of marriage, such decree to become absolute one
month from this day. I declare that there is one child of the
marriage under the age of 18 years, Danyal Karim Bashir born 17
October 1992. Whilst I am not satisfied that proper arrangements
in the circumstances have been made for the welfare of the child,
I am satisfied that there are circumstances that exist which make
it appropriate that the decree become absolute notwithstanding
that proper arrangements have not been so made.
I request that a preparation of my reasons for judgment be
expedited, and when available they be provided to Charles Cohen at
Legal Aid.