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.