Abedini v Commissioner of the Australian Federal Police
[2023] VCC 658
•30 June 2023
| IN THE COUNTY COURT OF VICTORIA AT Melbourne COMMON LAW DIVISION | Revised Not Restricted Suitable for Publication |
| Confiscation List |
Case No. CI-14-05621
IN THE MATTER of Proceeds of Crime Act (2002) (Cth)
and
IN THE MATTER of property suspected of being proceeds of serious and indictable offences
and
IN THE MATTER of the suspect, Farhad Nasre Isfhani
BETWEEN:
| FARINA ABEDINI | First Applicant |
| and | |
| MAX DONNELLY (in his capacity as the Trustee for the Bankrupt Estate of HOMAYUN ABEDINI) | Second Applicant |
| and | |
| THE COMMISSIONER OF THE AUSTRALIAN FEDERAL POLICE | Respondent |
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JUDGE: | HER HONOUR JUDGE HINCHEY | |
WHERE HELD: | Melbourne | |
DATE OF HEARING: | 20, 21, 22, 26, 27 and 29 April, 6, 9, 24 and 25 May and 19 September 2022; last submission received 11 April 2023 | |
DATE OF JUDGMENT: | 30 June 2023 | |
CASE MAY BE CITED AS: | Abedini v Commissioner of the Australian Federal Police | |
MEDIUM NEUTRAL CITATION: | [2023] VCC 658 | |
REASONS FOR JUDGMENT
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Subject:PROCEEDS OF CRIME
Catchwords: Restraining order – application for exclusion from restraint – nature of interest – bankruptcy – whether Commissioner estopped from denying effect of Federal Circuit Court orders in bankruptcy proceedings – application for ancillary orders – forfeiture – application for exclusion from forfeiture – application for compensation – application for relief from hardship
Legislation Cited: Proceeds of Crime Act 2002 (Cth), s5, s18, s19, s25, s29, s31, s39, s47, s49, s72, s73, s74, s77, s78, s329, s330, s338; Criminal Code Act 1995 (Cth), s134, s135, s400; Income Tax Assessment Act 1997, s6.5; Crimes Act 1900 (NSW), s192E, s192G s193D, Part IVAA; Anti-Money Laundering and Counter-Terrorism Financing Act 2006 (Cth), s74, s75B, s142, s143
Cases Cited: Abedini and Anor v Commissioner of The Australian Federal Police (Ruling) [2023] VCC 315; Mai v Commissioner of the Australian Federal Police (2020) 62 VR 118; Calverley v Green (1984) 155 CLR 242; Green v Green (1989) 17 NSWLR 343; Jess v McNiven, in the matter of McNiven (No 2) [2022] FCA 446; Waltons Stores (Interstate) Ltd v Maher (1987) 164 CLR 387; The Commissioner of Australian Federal Police v Vo [2016] NSWSC 711; Director of Public Prosecutions (Cth) — re s19 of the Proceeds of Crime Act 2002; re of Funds in a Bank Account; in the matter of Sunshine Worldwide Holdings Limited and South East Group Limited [2005] 62 NSWLR 400; Briginshaw v Briginshaw (1938) CLR 336; DPP v Lake (1989) 44 A Crim R 63; Director of Public Prosecutions v Ali (No 2) [2010] VSC 503; Commissioner of theAustralian Federal Police v Goldstein (a pseudonym) [2015] VCC 1425; Meskovski v Director of Public Prosecutions [2018] VSCA 293
Judgment: Application for ancillary orders dismissed; Application for exclusion from restraining order dismissed; Application for compensation dismissed; Application for forfeiture granted; Application for exclusion from forfeiture dismissed; Application for relief from hardship dismissed.
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APPEARANCES: | Counsel | Solicitors |
| For the Applicant | Mr G Jones | Stamford Law Pty Ltd |
| For the Respondent | Ms R Burton | AFP Criminal Assets Litigation |
Table of Contents
Introduction and background
Relevant legislation
Purchase of the Turramurra property
The joint application for exclusion from the Restraining Order
Documents supporting the initial application for exclusion from the Restraining Order
Mrs Abedini’s affidavit affirmed 11 June 2019
Mrs Abedini’s affidavit affirmed 13 February 2020
Mrs Abedini’s affidavit affirmed 25 July 2021
Mrs Abedini’s affidavit affirmed 8 April 2022
Mrs Abedini’s affidavit affirmed 20 April 2022
Mrs Abedini’s affidavit affirmed 21 April 2022
Documents relied upon by Mrs Abedini in relation to an application to be excused for paying for transcript
Mrs Abedini’s evidence to the Court
Other relevant affidavit evidence
Mr Manouchehr Saeidi
Mr Mohammad Ali Rezadad Yousef Jalai
Mr Herman Abedini Kalrhoudy
Assessment of Mrs Abedini’s credit
Assessment of Mr Abedini’s application for exclusion from the Restraining Order
Assessment of Mrs Abedini’s application for exclusion from the Restraining Order
The nature of the property interests claimed by Mrs Abedini
Does Mrs Abedini have a relevant interest in the Turramurra property?
Can the Court be satisfied that Mrs Abedini contributed any monies to the purchase of the Turramurra property?
Does Mrs Abedini have any equitable interest in, or other right, power or privilege in relation to the property?
Did Mrs Abedini receive a relevant interest in the property by reason of the divorce?
Did Mrs Abedini receive any interest in the property by reason of her dealings with the Trustee in Bankruptcy?
Does Mrs Abedini have an interest in the property as a tenant or by reason of a right to occupy?
Are the assumptions made by Mr Hicks in his expert report, evidence of a proprietary interest in the property?
Should Mrs Abedini’s interest in the Turramurra property be excluded from the operation of the Restraining Order?
An overview of the Hicks Report
Analysis of the financial position of Mr and Mrs Abedini
An overview of the evidence in relation to Mr Isfhani’s dealings with ING Direct in order to obtain a mortgage over the Turramurra property
Offences relied upon by the Commissioner
Money Laundering – dealing with money suspected to be proceeds of crime
Mrs Abedini’s application under section 39 of the Act for ancillary orders to vary the Restraining Order
The Commissioner’s application for forfeiture
Mrs Abedini’s application for exclusion from forfeiture
Mrs Abedini’s application for compensation
Application for relief from hardship
Conclusion and Orders
Annexure “A”:
Source and application of funds
HER HONOUR:
Introduction and background
1By an application dated 14 November 2014, the Commissioner of the Australian Federal Police (“the Commissioner”), made an application under s25 of the Proceeds of Crime Act 2002 (Cth) (“the Act”) for a restraining order under s18 and s19 of the Act. The application was brought against Farhad Nasre Isfhani (“Mr Isfhani”) and included an application to restrain property including real property and property constituted by monies standing to the credit of various bank accounts. The real property included a property located at 6A Miowera Road, North Turramurra, New South Wales (“the Turramurra property”).
2On 17 November 2014, her Honour Judge Cohen, in the County Court of Victoria at Melbourne, made a restraining order pursuant to s18 and s19 of the Act. That order provided that the property which had been the subject of that application, including the Turramurra property, not be disposed of or otherwise dealt with by any person, without the prior written consent of the Commissioner, or until further order.
3Pursuant to s26(4) of the Act, the restraining order was made on an ex parte basis, the supporting evidence in relation to which was contained in the affidavit of Federal Agent Susanne Elise Jones sworn on 14 November 2014 (“the Jones affidavit”).[1]
[1]Joint Court Book (“CB”) page 694
4Mr Isfhani is the sole registered proprietor of the Turramurra property.[2]
[2]CB 747
5Mr Isfhani initially brought an application for exclusion from the restraining order pursuant to s31 of the Act, in relation to the Turramurra property. He subsequently withdrew that application. He is taking no part in these proceedings.
6Six applications remain on foot for determination by this Court, viz:
(a) an application dated 21 September 2015 by Mr Homayun Abedini and Mrs Farina Abedini, for exclusion from the restraining order pursuant to s31 of the Act. This application was brought jointly by Mr and Mrs Abedini (“the exclusion application”);[3]
(b) Mrs Abedini’s application under s39 of the Act filed on 15 April 2021, seeking an ancillary order that the Turramurra property be released from the restraining order in order to enable Mrs Abedini to use it as security for raising money to pay a settlement sum to the trustee of Mr Abedini’s bankrupt estate;[4]
(c) Mrs Abedini’s application seeking exclusion from forfeiture under s74 of the Act;
(d) Mrs Abedini’s application seeking compensation under s78 of the Act;
(e) Mrs Abedini’s application in respect of her children, for relief from hardship under s72 of the Act;[5] and
(f) the Commissioner’s application dated 31 March 2022 pursuant to s47 and s49 of the Act, that the Turramurra property be forfeited.[6]
[3]CB 11
[4]CB 26
[5]It should be noted that the second to fourth applications were all brought on 28 October 2019 as part of a single application seeking alternative orders: CB 18
[6]CB 13
Relevant legislation
7Section 5 of the Act sets out the principal objects of the Act, relevantly, as follows:
“5 Principal objects
The principal objects of this Act are:
(a)to deprive persons of the proceeds of offences, the instruments of offences, and benefits derived from offences, against the laws of the Commonwealth or the non‑governing Territories; and
…
(ba)to deprive persons of unexplained wealth amounts that the person cannot satisfy a court were not derived or realised, directly or indirectly, from certain offences; and
(c)to punish and deter persons from breaching laws of the Commonwealth or the non‑governing Territories; and
(d)to prevent the reinvestment of proceeds, instruments, benefits, literary proceeds and unexplained wealth amounts in further criminal activities; and
(da)to undermine the profitability of criminal enterprises;
…”
8Section 29(1) of the Act provides that the Court must exclude “a specified interest in property” from a restraining order made under s18 or s19, if the court is satisfied, relevantly:
(a) for a restraining order under s18[7] — that the interest is neither:
(i)in any case — proceeds of unlawful activity; nor
(ii)if an offence to which the order relates is a serious offence — an instrument of any serious offence; or
(b) for a restraining order under s19[8] — that the interest is neither:
(i)in any case — proceeds of an indictable offence or … an indictable offence of Commonwealth concern; nor
(ii)if an offence to which the order relates is a serious offence — an instrument of any serious offence.
[7] Section 29(2)(c) of the Act
[8] Section 29(2)(d) of the Act
9The relevant applicant bears the onus of satisfying the Court that relevant reasons in s29(2) of the Act apply to exclude their interest, if any.
10Section 31 of the Act relevantly provides:
“31 Application to exclude property from a restraining order after restraining order has been made
(1)A person may apply for an order under section 29 or 29A if a restraining order that covers property in which the person claims an interest has been made.
(1A)An application under subsection (1):
(a)must be made to the court that made the restraining order;
(b)may be made at any time after the restraining order is made.”
11Section 39 of the Act provides for the making of ancillary orders as follows:
“39 Ancillary orders
(1)The court that made a restraining order, or any other court that could have made the restraining order, may make any ancillary orders that the court considers appropriate and, without limiting the generality of this, the court may make any one or more of the following orders:
(a)…
(b)an order varying a condition to which the restraining order is subject….
(2)The court can only make an ancillary order on the application of:
(a)the *responsible authority; or
(b)the owner of the property covered by the order; or
(c)if the *Official Trustee was ordered to take custody and control of the property—the Official Trustee; or
(d)any other person who has the leave of the court.
(3)A person who applies for an ancillary order must give written notice of the application to all other persons entitled to make such an application.
…
(4)An ancillary order may be made:
…
(b)in any case—at any time after the restraining order is made.”
12Sections 47 and 49 relate to the forfeiture orders which are sought by the Commissioner. Those sections relevantly provide as follows:
“47 Forfeiture orders—conduct constituting serious offences
(1)A court with proceeds jurisdiction must make an order that property specified in the order is forfeited to the Commonwealth if:
(a)the responsible authority for a restraining order under section 18 that covers the property applies for an order under this subsection; and
(b)the restraining order has been in force for at least 6 months; and
(c)the court is satisfied that a person whose conduct or suspected conduct formed the basis of the restraining order engaged in conduct constituting one or more serious offences.
(2)A finding of the court for the purposes of paragraph (1)(c) need not be based on a finding as to the commission of a particular offence, and can be based on a finding that some serious offence or other was committed.
(3)The raising of a doubt as to whether a person engaged in conduct constituting a serious offence is not of itself sufficient to avoid a finding by the court under paragraph (1)(c).
Refusal to make a forfeiture order
(4)Despite subsection (1), the court may refuse to make an order under that subsection relating to property that the court is satisfied:
(a)is an instrument of a serious offence other than a terrorism offence; and
(b)is not proceeds of an offence;
if the court is satisfied that it is not in the public interest to make the order.”
“49 Forfeiture orders—property suspected of being proceeds of indictable offences etc.
(1)A court with proceeds jurisdiction must make an order that property specified in the order is forfeited to the Commonwealth if:
(a)the responsible authority for a restraining order under section 19 that covers the property applies for an order under this subsection; and
(b)the restraining order has been in force for at least 6 months; and
(c)the court is satisfied that one or more of the following applies:
(i)the property is proceeds of one or more indictable offences;
…
(iii)the property is proceeds of one or more indictable offences of Commonwealth concern;
(iv)the property is an instrument of one or more serious offences; and
(e)the court is satisfied that the authority has taken reasonable steps to identify and notify persons with an interest in the property.
(2)A finding of the court for the purposes of paragraph (1)(c):
(a)need not be based on a finding that a particular person committed any offence; and
(b)need not be based on a finding as to the commission of a particular offence, and can be based on a finding that some offence or other of a kind referred to in paragraph (1)(c) was committed.
(3)Paragraph (1)(c) does not apply if the court is satisfied that:
(a)no application has been made under Division 3 of Part 2‑1 for the property to be excluded from the restraining order; or
(b)any such application that has been made has been withdrawn.
Refusal to make a forfeiture order
(4)Despite subsection (1), the court may refuse to make an order under that subsection relating to property that the court is satisfied:
(a)is an instrument of a serious offence other than a terrorism offence; and
(b)is not proceeds of an offence;
if the court is satisfied that it is not in the public interest to make the order.”
13Section 72 of the Act provides for relief to be given to certain dependants from hardship. That section relevantly provides as follows:
“72 Relieving certain dependants from hardship
(1)The court making a forfeiture order specifying a person’s property must make another order directing the Commonwealth to pay a specified amount to a dependant of the person if:
(a)the forfeiture order is not to be made under section 48; and
(b)the court is satisfied that:
(i) the forfeiture order would cause hardship to the dependant; and
(ii)the specified amount would relieve that hardship; and
(iii)if the dependant is aged at least 18 years—the dependant had no knowledge of the person’s conduct that is the subject of the forfeiture order.
(2)The specified amount must not exceed the difference between:
(a)what the court considers is likely to be the amount received from disposing of the person’s property under the forfeiture order; and
(b)what the court considers is likely to be the sum of any payments of the kind referred to in paragraph 70(1)(b) in connection with the forfeiture order.
(3)An order under this section may relate to more than one of the person’s dependants.”
14The term “dependant” is defined in s338 of the Act, which provides:
“dependant: each of the following is a dependant of a person:
(a)the person’s spouse or de facto partner;
(b)the person’s child … who depends on the person for support.”
15Sections 73 and 74 of the Act deal with the application for exclusion from forfeiture. Those sections relevantly provide as follows:
“73 Making exclusion orders
(1)A court that made a forfeiture order, or that is hearing, or is to hear, an application (a forfeiture application) for a forfeiture order, must make an order excluding a specified interest in property from forfeiture (an exclusion order) if:
(a)a person applies for the exclusion order; and
(b)the forfeiture order, or the forfeiture application, specifies property in which the applicant has an interest; and
(c)if the forfeiture order was (or the forfeiture order applied for would be) made under section 47 or 49—the court is satisfied that the applicant’s interest in the property is neither of the following:
(i)proceeds of unlawful activity;
(ii)if an offence on which the order was (or would be) based is a serious offence—an instrument of any serious offence; and
(d)if the forfeiture order was (or the forfeiture order applied for would be) made under section 48—the court is satisfied that the applicant’s interest in the property is neither proceeds nor an instrument of any of the offences to which the forfeiture order or forfeiture application relates.”
“74 Applying for exclusion orders
Before a forfeiture order has been made
(1)A person may apply for an exclusion order if a forfeiture order that could specify property in which the person claims an interest has been applied for, but is yet to be made.”
16Sections 77 and 78 of the Act deal with the making of compensation orders and, relevantly, provide as follows:
“77 Making compensation orders
(1)A court that made a forfeiture order, or that is hearing, or is to hear, an application for a forfeiture order, must make an order under subsection (2) (a compensation order) if:
(a)a person (the applicant) has applied for a compensation order; and
(b)the court is satisfied that the applicant has an interest in property specified in the forfeiture order or in the application for the forfeiture order; and
(c)the court is satisfied that a proportion of the value of the applicant’s interest was not derived or realised, directly or indirectly, from the commission of any offence; and
(d)the court is satisfied that the applicant’s interest is not an instrument of any offence; and
(e)in the case of a court that is hearing or is to hear an application for a forfeiture order—the court makes the forfeiture order.”
“78 Application for compensation orders
Before a forfeiture order has been made
(1)A person may apply to a court for a compensation order if an application for a forfeiture order that could specify property in which the person claims an interest has been made to the court, but the forfeiture order is yet to me made.
(2) … .”
17The term “interest” as that term relates to a property or thing, is defined in s338 the Act to mean:
“interest, in relation to property or a thing, means:
(a)a legal or equitable estate or interest in the property or thing; or
(b)a right, power or privilege in connection with the property or thing;
whether present or future and whether vested or contingent.”
18The term “serious offence” is defined in s338 of the Act as follows:
“serious offence” means:
(a)an indictable offence punishable by imprisonment for 3 or more years, involving:
…
(iii)unlawful conduct by a person that causes, or is intended to cause, a benefit to the value of at least $10,000 for that person or another person; or
(iv)unlawful conduct by a person that causes, or is intended to cause, a loss to the Commonwealth or another person of at least $10,000.”
19The terms “proceeds” and “instrument” are defined in s329 and s330 of the Act to mean:
“329 Meaning of proceeds and instrument
(1)Property is proceeds of an offence if:
(a)it is wholly derived or realised, whether directly or indirectly, from the commission of the offence; or
(b)it is partly derived or realised, whether directly or indirectly, from the commission of the offence;
whether the property is situated within or outside *Australia.
(2)Property is an instrument of an offence if:
(a)the property is used in, or in connection with, the commission of an offence; or
(b)the property is intended to be used in, or in connection with, the commission of an offence;
whether the property is situated within or outside *Australia.
(3)Property can be proceeds of an offence or an instrument of an offence even if no person has been convicted of the offence.
(4)Proceeds or an instrument of an *unlawful activity means proceeds or an instrument of the offence constituted by the act or omission that constitutes the unlawful activity.
330When property becomes, remains and ceases to be proceeds or an instrument
(1)Property becomes proceeds of an offence if:
(a)the property is wholly or partly derived or realised from a disposal or other dealing with *proceeds of the offence; or
(b)the property is wholly or partly acquired using proceeds of the offence; or
(c)an *encumbrance or a security on, or a liability incurred to acquire, retain, maintain or make *improvements to, the property is wholly or partly discharged using proceeds of the offence; or
(d)the costs of retaining, maintaining or making improvements to the property are wholly or partly met using proceeds of the offence; or
(e)the property is improved using proceeds of the offence;
including because of one or more previous applications of this section.
(2)Property becomes an instrument of an offence if:
(a)the property is wholly or partly derived or realised from the disposal or other dealing with an *instrument of the offence; or
(b)the property is wholly or partly acquired using an instrument of the offence; or
(c)an *encumbrance or a security on, or a liability incurred to acquire, retain, maintain or make *improvements to, the property is wholly or partly discharged using an instrument of the offence; or
(d)the costs of retaining, maintaining or making improvements to the property are wholly or partly met using an instrument of the offence; or
(e)the property is improved using an instrument of the offence;
including because of one or more previous applications of this section.
…
20The terms “indictable offence” and “unlawful activity” are defined in s338 of the Act in the following manner:
“indictable offence means an offence against a law of the Commonwealth, or a *non‑governing Territory, that may be dealt with as an indictable offence (even if it may also be dealt with as a summary offence in some circumstances).
…
unlawful activity means an act or omission that constitutes:
(a)an offence against a law of the Commonwealth; or
(b)an offence against a law of a State or Territory; or
(c)an offence against a law of a foreign country.
… .”
21The Commissioner accepted from the outset that Mr and Mrs Abedini do not have the same interest in the litigation concerning the Turramurra property. For this purpose it was accepted that the first application, being the application for exclusion, should be determined as though there are two such applications for exclusion to be decided, the first brought by Mr Abedini and the second brought by Mrs Abedini. In the absence of any opposition to this submission by Counsel for Mrs Abedini, that is the manner in which I have approached this matter.
Purchase of the Turramurra property
22It is not in dispute that the purchase of the Turramurra property was effected in the manner set out in Annexure 19 of the expert report provided by Mr Colin Hicks (“the Hicks Report”).[9]
[9] CB 373: Annexure 19 in Exhibit CH1 to the affidavit of Colin Hicks affirmed on 30 June 2017
23In summary, the following transactions took place:
(a) the contract for the purchase of the Turramurra property was entered into on 22 February 2011, when Mr Isfhani signed the contract as purchaser of the Turramurra property for the sum of $1,070,000.00. A deposit of $107,000 was paid by Mr Isfhani.[10] It is not in dispute that Mr Abedini paid the money for this deposit into a Westpac Banking Corporation (“Westpac”) account ending in the numbers 4084, opened by Mr Isfhani for the purposes of purchasing the Turramurra property.[11] The money for this payment came out of Mr Abedini’s Westpac account -0901, via a payment to his nephew, Aghada;[12]
(b) in May 2011, Mr Isfhani entered into a loan agreement with ING Bank in order to borrow the sum of $855,925, being 80 per cent of the purchase price of the Turramurra property;[13]
(c) the settlement sum in respect of the purchase of the Turramurra property was $154,808.02. Settlement of the property took place on 23 May 2011. On 20 May 2011, Mr Abedini provided the sum of $121,804.42 for the settlement of the Turramurra property from his Commonwealth Bank (“CBA”) account -2623.[14] On the same date, Mr Isfhani provided the remaining $33,000 for the settlement. Mr Abedini repaid this sum to Mr Isfhani on 25 July 2011, from CBA account -2623;[15]
(d) on 21 June 2011, Mr Abedini paid Mr Isfhani’s conveyancing fees out of his CBA account -2623;[16]
(e) between 23 June 2011 and 23 February 2015, more than 85 payments totalling in excess of $200,000, were made by Mr Abedini to Mr Isfhani for the purposes of payment of the mortgage;[17]
(f) between 10 July 2017 and 26 April 2021, several mortgage repayments were made from a bank account in Mrs Abedini’s name;[18] and
(g) on 28 December 2020 and 8 February 2021, two mortgage repayments were made from the CBA account in the name of Sydney International Connect, an unregistered money remitter.[19]
[10] See Contract of Sale dated 22 February 2011: CB 2293
[11]In this judgment, a reference to a particular bank account will be made by listing the last four numbers of the account and referring to the relevant bank. For instance, this account will be referred to as Westpac account -4084; Evidence of the payment into Westpac account -4084 appears at CB 2287
[12] See extract from Westpac account -0901: CB 2285
[13] See paragraph 76 of the affidavit of Susanne Elise Jones, sworn 14 November 2014: CB 719
[14] See evidence of payment: CB 2350-2356
[15] See evidence of payment: CB 2348
[16] See Hicks Report: CB 87; see also bank records of this transaction at CB 2358
[17]See summary of monies paid by Mr Abedini to Mr Isfhani: CB 2362-2367; See bank statements for Mr Abedini’s Westpac account no -4709: CB 2369-2413
[18]Payment on 10 July 2017 from St George account -7766 (CB 1282); payment on 21 December 2020 from St George account -7766 (CB 1122); payment on 15 March 2021 from St George account -7766 (CB 1085); payment on 29 March 2021 from St George account -7766 (CB 1090); payment on 12 April 2021 from St George account -7766 (CB 1092) and payment on 26 April 2021 from St George account –7766 (CB 1096)
[19]Payment on 28 December 2020 from CBA account in the name of Sydney International Connect -1366 (CB 1318); payment on 8 February 2021 from CBA account in the name of Sydney International Connect -1366 (CB 1315)
The joint application for exclusion from the Restraining Order
24The original application for exclusion from the restraining order, dated 21 September 2015,[20] was made on behalf of Mr and Mrs Abedini, jointly. The basis of the application was that the applicants were said to be “beneficial owners” of the “whole of the property”.[21]
[20]CB 11
[21]CB 12
25During the hearing, both parties relied upon numerous affidavits, exhibits and other documents which are contained within the Joint Court Book and a Supplementary Court Book.[22] The relevant parts of those affidavits, exhibits and documents are referred to in the body of and footnotes to this judgment.
[22] “SCB”
26Shortly after the conclusion of the evidence and closing submissions, a dispute arose as to what documents contained within the Court Books or referred to in evidence, could be referred to and relied upon by the Court in reaching its judgment in this matter. In particular, it was submitted that I should have no regard to any affidavit or other document filed with the Court, nor the transcript of the evidence given, in the course of an application by Mrs Abedini to be excused from paying for a half share of the transcript in this matter (“the transcript application”).
27A directions hearing was convened, the matter was pressed by Counsel on behalf of Mrs Abedini and written submissions were ordered and filed.
28On 9 March 2023, I made a ruling,[23] declining to exclude those documents from consideration by the Court. Consequently, those affidavits and documents were assigned page numbers and were added to the Supplementary Court Book.[24] I also directed that the relevant transcript of the evidence given, and submission made in the transcript application, be included as part of the transcript of the proceeding and consequently, available for consideration in reaching my conclusions in this matter.
[23] Abedini and Anor v Commissioner of The Australian Federal Police (Ruling) [2023] VCC 315
[24] Ibid at paragraph [38]
Documents supporting the initial application for exclusion from the Restraining Order
29Documents within the Court Book, some filed with the initial application for exclusion, confirm the details of the purchase of the Turramurra property, including the bank accounts from which monies were paid, in order to settle the purchase and pay the mortgage, as set out above.
30Apart from the assertions made within her affidavit and repeated during her oral evidence (said to be corroborated by the affidavit of Herman Kalhroudy affirmed on 27 July 2021[25]), there is no evidence in these documents that Mrs Abedini directly contributed any monies to the purchase of the Turramurra property.
[25] CB 2459-2464
31It is asserted in the application for exclusion from the restraining order, that “the applicants” – namely, both Mr and Mrs Abedini - are “beneficial owners” of the “whole of the property”.
32During the hearing, Mrs Abedini changed her position further, maintaining that by reason of contributing her own monies to the purchase price, she is in fact the beneficial owner of the whole of the Turramurra property.
Mrs Abedini’s affidavit affirmed 11 June 2019
33In her affidavit affirmed on 11 June 2019, Mrs Abedini stated that she had not been actively involved in filing the application for exclusion from the restraining order “as I relied on Mr Abedini to handle it on his and my behalf as I do not understand much about financial matters”.[26]
[26] Affidavit of Farina Abedini affirmed 11 June 2019, paragraph 5, CB 1956
34She deposed to the fact that she and Mr Abedini had divorced on 15 January 2014.[27] In that affidavit, Mrs Abedini also deposed to the fact that during the divorce ceremony, with witnesses present, “Mr Abedini agreed to gift to me his interest in the Property as dowry”.[28]
[27]Affidavit of Farina Abedini affirmed 11 June 2019, paragraph 6, CB 1956
[28]Affidavit of Farina Abedini affirmed 11 June 2019, paragraph 6, CB 1956
35No mention of the fact of a divorce in January 2014 was made in any document filed with the Court, prior to date of this affidavit. Mr Abedini was not called to give evidence about his participation in a divorce ceremony, or of the words he allegedly used in satisfying the dowry, or of otherwise making any gift of his interest in the Turramurra property to Mrs Abedini.
Mrs Abedini’s affidavit affirmed 13 February 2020
36In an affidavit dated 12 February 2020 but affirmed on 13 February 2020, Mrs Abedini stated that the Turramurra property had been purchased “with … our family money, brought from Iran and not proceeds of any crime”.[29] (emphasis added)
[29] Affidavit of Farina Abedini affirmed 13 February 2020, paragraph 24, CB 2024
37Mrs Abedini deposed to the fact that she and her husband were “no[t] poor and had fund[s] in Iran as we had a very successful business there which [is] currently run by Mr Abedini’s brother”.[30] (emphasis added)
[30] Affidavit of Farina Abedini affirmed 13 February 2020, paragraph 12, CB 2021
38At paragraph 13 of this affidavit, Mrs Abedini went on to state: “My husband at that time Mr Abedini transferred the money we had in Iran to Australia for the purchase of a residential property per his promise. He made three major transactions with a total amounts (sic) of $330,807.69, … .”[31] (emphasis added) She listed three transactions which she said had been made by her husband, in order to transfer money in that sum from Iran to Australia. She said that those amounts were transferred in October and November 2008. The bank accounts into which she said that her husband transferred that money were National Australia Bank (“NAB”) account -3598 and CBA account -0901.[32]
[31] Affidavit of Farina Abedini affirmed 13 February 2020, paragraph 13, CB 2022
[32] Affidavit of Farina Abedini affirmed 13 February 2020, paragraph 13, CB 2022
39In relation to the fact that no earlier mention had been made of the divorce, at paragraph 19 of the affidavit, Mrs Abedini deposed:
“… We made [a] mistake and did not disclose that we were divorced in fear of losing our home as its title was under Mr Isfahani’s (sic) name and was kept in trust for us. I did not know that (sic) consequences of this act and I am sorry for that. [W]e were divorce[d] in fact on 15 January 2014.”[33]
(emphasis added)
[33]Affidavit of Farina Abedini affirmed 13 February 2020, paragraph 19, CB 2023
40At paragraph 21 of the affidavit, Mrs Abedini deposed –
“At the time of my divorce Mr Abedini gave his rights in the Property to me as a dowry gift under the divorce in Islam. Since 15 January 2014 I am the right[ful] and sole owner of the Property.”[34]
[34] Affidavit of Farina Abedini affirmed 13 February 2020, paragraph 21, CB 2023
41During the hearing, Mrs Abedini gave evidence in which she continued to assert that she was given all of Mr Abedini’s interest in the Turramurra property as part of the divorce settlement and payment of the dowry.[35] She was unable to recall the exact words used by Mr Abedini during the ceremony.[36]
[35]See Transcript (“T”) 230-236; see also CB 2023, paragraph 21
[36] T234, Line (“L”) 5
42In relation to the details of the divorce ceremony, Mrs Abedini relied upon affidavits from Manouchehr Saeidi[37] and Mohammad Ali Rezadad Yousef Jalai.[38] The substance of their affidavit evidence is set out below.
[37]Affidavit of Manoucher Saedi affirmed 26 July 2021, CB 2450, paragraph 5
[38]Affidavit of Mohammad Ali Rezadad Yousef Jalai affirmed 26 July 2021, CB 2453, paragraph 5
43Mrs Abedini initially agreed that both Mr Saeidi and Mr Jalai were “correct” when they recalled that Mr Abedini said words to the effect that “I give to my wife the family home”.[39] She denied that she had added the concept of Mr Abedini gifting her his “interest” in the home, in order to suggest that she already had some ownership of the property.[40]
[39] T234, L21-27; T235, L5-11; see also T326, L15-16
[40] T236, L25-31
44At paragraph 16 of the affidavit, Mrs Abedini also deposed to the fact that “for the maintenance of the mortgage and our expenses”, since 2013, sums totalling $597,789.34 were transferred from Iran to Australia in 20 transactions, “using various remitters registered in Australia”.[41] (emphasis added)
[41] Affidavit of Farina Abedini affirmed 13 February 2020, paragraph 16, CB 2022
Mrs Abedini’s affidavit affirmed 25 July 2021
45In her affidavit affirmed on 25 July 2021, amongst other things, Mrs Abedini set out her asset position from time to time. In addition, she confirmed that she and Mr Abedini were married in about 1995. She deposed to the fact that the terms of her “Islamic Marriage provides for an outstanding dowry of 250 gold pieces to be paid by the husband in the event of divorce”.[42] Apart from what is set out below, no reference was made in that affidavit to the precise words spoken at the divorce ceremony.[43]
[42] Affidavit of Farina Abedini affirmed 25 July 2021, paragraph 10, CB 2030
[43]CB 2030, paragraph 10
46Separate evidence was relied upon by Mrs Abedini which calculated the value of a gold piece (as at 15 January 2014) at $550.[44] Thus, the dowry which Mrs Abedini alleged was given to her upon her marriage was worth, at most, $137,500 as at 15 January 2014.
[44] See exhibit RG-1 to the affidavit of Rita Gilani sworn 7 April 2022, CB 2988
47In the same affidavit, Mrs Abedini also deposed to the following matters:
(a) Islamic custom and culture determined that upon her marriage to Mr Abedini, their assets were joined;[45]
(b) in or about April 2000, she sold an apartment which she owned for about $235,000. She did not need the money at that time and asked her brother-in-law, Herman Kalhroudy, to invest it for her;[46]
(c) in about 2008, when she and Mr Abedini were thinking of purchasing a family home, she requested that Mr Kalhroudy transfer her money to Australia. That money then totalled $330,807.69. Despite having deposed in her 13 February 2020 affidavit that these transfers had been made by her husband, in this affidavit she deposed that the transfers were made at her request. She said that the NAB account number into which the October and November transfers were made was -5436, rather than -3598.[47] A cross referencing of the bank account records showing the receipt of the relevant monies, demonstrates that this information is incorrect. The correct information regarding the details of the transfer was set out in Mrs Abedini’s affidavit affirmed on 13 February 2020;
(d) in about 2011, she was informed by her husband that the deposit of $107,000 for the purchase of the Turramurra property was sourced from “our assets in Tehran”.[48] (emphasis added) Mr Abedini was not called to give any evidence about this matter in these proceedings;
(e) in about 2011, she was informed by her husband that by reason of previous failed business ventures, they were “unsuitable for credit” but that Mr Isfhani had “agreed to hold the property in trust for us”.[49] Mr Abedini was not called to give any evidence about this matter in these proceedings;
(f) since 2011, “we paid for the mortgage repayments into an account opened in the name of Mr. Farhadi Nasr Isfhani for the purpose of our mortgage repayments”;[50]
(g) in order to fund “part” of the mortgage –
“… we had an offset arrangement with a friend, Ms. Fatemeh Faeghi, whose parents are Australian citizens who moved back to Iran. Ms. Faeghi would receive her parents['] pension money in Australia, and this would then be used to pay for our mortgage. Whilst from our … assets in Iran – we would forward an equivalent sum to Ms Faeghi[’s] parents for their living expenses.
Our arrangements were that we receive about $1900 from her every month in Australia into my husband[’s] Westpac account … These arrangements lasted from 2010 to 2019, when the mother of our friend passed away.”[51]
[45] Affidavit of Farina Abedini affirmed 25 July 2021, paragraph 13, CB 2031
[46] Affidavit of Farina Abedini affirmed 25 July 2021, paragraph 21, CB 2034
[47] Affidavit of Farina Abedini affirmed 25 July 2021, paragraph 28, CB 2036
[48] Affidavit of Farina Abedini affirmed 25 July 2021, paragraph 30, CB 2037
[49] Affidavit of Farina Abedini affirmed 25 July 2021, paragraph 32, CB 2038
[50] Affidavit of Farina Abedini affirmed 25 July 2021, paragraph 34, CB 2038
[51] Affidavit of Farina Abedini affirmed 25 July 2021, paragraphs 35 and 36, CB 2038
(h) from its acquisition until approximately early 2014 (when they divorced), she resided in the Turramurra property with her husband and two children;[52]
(i) at the divorce ceremony, Mr Abedini “accepted to pay my outstanding dowry, this was in part satisfied by giving me all his rights to our residential home in Australia at 6A Miowera Road North Turramurra NSW”.[53] (emphasis added) Mr Abedini was not called to give any evidence about these matters in these proceedings;
(j) despite the divorce and Mr Abedini’s acceptance of his obligation to satisfy the dowry (referred to above), Mrs Abedini confirmed that “no Family Court orders were made”. She also deposed that, “Although we were divorced, we continued to live under one roof for the sake of our children”;[54]
(k) following her divorce in 2014, her assets included “three properties (shops) in Tehran valued about $200,000 received as part of my dowry”.[55] (emphasis added) Mr Abedini was not called to give any evidence about these matters in these proceedings;
(l) in mid-2020, she joined the bankruptcy proceedings relating to her husband “to protect my interest in the property at 6A Miowera Road, Turramurra NSW”;[56]
(m) on or about 12 November 2020, she “compromised my position in substance and consent orders were reached with the Trustee”.[57] The Commissioner of the Australian Federal Police was not a party to these orders.[58] Mrs Abedini deposed that it is her understanding of the orders made in the Federal Circuit Court of Australia (“the FCC”), “that if I pay the Trustee the sum of $405,000 then I will have the property transferred to myself”.[59] She acknowledged that despite reaching this agreement with the Trustee, she has been unable to pay that sum of money to the Trustee;[60]
(n) as at the date of affirming the affidavit, she thought that she had obtained finance “from the private lender to fund the refinance of the property to payout the current liability to ING … and the payment of the settlement sum to the Trustee”.[61]
(o) at the time of affirming the affidavit in July 2021, she was working and able to afford the mortgage repayments.[62]
[52] Affidavit of Farina Abedini affirmed 25 July 2021, paragraphs 39 and 41, CB 2039
[53]Affidavit of Farina Abedini affirmed 25 July 2021, paragraph 41, CB 2039
[54]Affidavit of Farina Abedini affirmed 25 July 2021, paragraph 41, CB 2039-2040
[55] Affidavit of Farina Abedini affirmed 25 July 2021, paragraph 42, CB 2040
[56] Affidavit of Farina Abedini affirmed 25 July 2021, paragraph 51, CB 2042
[57]Affidavit of Farina Abedini affirmed 25 July 2021, paragraph 52, CB 2042
[58] Affidavit of Farina Abedini affirmed 25 July 2021, paragraph 53, CB 2042
[59]Affidavit of Farina Abedini affirmed 25 July 2021, paragraph 54, CB 2042
[60]Affidavit of Farina Abedini affirmed 25 July 2021, paragraph 56 and 57, CB 2042
[61] Affidavit of Farina Abedini affirmed 25 July 2021, paragraph 65, CB 2044
[62] Affidavit of Farina Abedini affirmed 25 July 2021, paragraph 66, CB 2044
48I note that in this affidavit, no mention was made by Mrs Abedini of the fact that one of her assets was the Mercedes Benz GLC vehicle. I note further, that the Asset Finance Agreement for the lease of this vehicle, was signed by Mrs Abedini on 6 August 2020.[63]
[63] SCB 3386-3396
Mrs Abedini’s affidavit affirmed 8 April 2022
49In her affidavit affirmed on 8 April 2022, which was primarily affirmed in support of her application for relief from hardship, Mrs Abedini deposed to the following matters:
(a) she is an artist. Her home is also a studio and art gallery from which she operates. If she loses her home, she will lose her business;[64]
(b) she was employed up until 2 August 2021, but lost her job as the contract her employer had with the Government, ended;[65]
(c) she is employed by, and a director of, Outland Sandpiper Trading (“Upland Sandpiper”),[66] a company that trades and is registered in money remittance. Mr Abedini manages this business and she receives a director’s fee “from time to time” which “helps with my living expenses”;[67]
(d) she has three shops in Iran that are part of her dowry from her ex-husband.[68] (emphasis added)
[64] Affidavit of Farina Abedini affirmed 8 April 2022, paragraph 8, CB 2939
[65] Affidavit of Farina Abedini affirmed 8 April 2022, paragraph 15, CB 2940
[66]As the hearing progressed, it became clear that the name of this entity is Upland Sandpiper Trading Pty Ltd (ABN 34 622 866 013). Despite the varied nomenclature used in the affidavit material relied upon by Mrs Abedini, this entity will be referred to as “Upland Sandpiper” in this judgment
[67] Affidavit of Farina Abedini affirmed 8 April 2022, paragraph 19, CB 2941
[68] Affidavit of Farina Abedini affirmed 8 April 2022, paragraph 25, CB 2942
50I note that this affidavit purported to inform the Court of Mrs Abedini’s asset position. Despite this, once again, no mention was made by Mrs Abedini of the fact that one of her assets was the Mercedes Benz GLC vehicle, despite the Asset Finance Agreement for the lease of this vehicle having been signed by Mrs Abedini on 6 August 2020. I also note that no mention was made in this affidavit of any other business that Mrs Abedini was pursuing, had an interest in or with which she was associated.
Mrs Abedini’s affidavit affirmed 20 April 2022
51In her affidavit affirmed on 20 April 2022, which was filed in respect of the transcript application, Mrs Abedini deposed, amongst other things, to the following matters:
(a) one of her assets is a Mercedes Benz GLC vehicle, 2020 model, which is registered under her name. The vehicle is “fully financed”. The finance is paid by Upland Sandpiper, “of which I am employed by and director of”;[69]
(b) she is the sole shareholder of Upland Sandpiper, which is a money remittance business that “hold (sic) no asset”;[70]
(c) despite Upland Sandpiper paying the finance costs of the Mercedes Benz vehicle, she considers those repayments to be her own liability.[71]
[69]Affidavit of Farina Abedini affirmed 20 April 2022, paragraph 2(d), SCB 3336
[70] Affidavit of Farina Abedini affirmed 20 April 2022, paragraph 2(e), SCB 3336
[71] Affidavit of Farina Abedini affirmed 20 April 2022, paragraph 3(b), SCB 3336
52I note that this affidavit purported to inform the Court of Mrs Abedini’s asset position. Despite this, once again, no mention was made by Mrs Abedini of any other business that she was pursuing, had an interest in or with which she was associated.
Mrs Abedini’s affidavit affirmed 21 April 2022
53In her affidavit affirmed on 21 April 2022, which was also filed in respect of the transcript application, Mrs Abedini deposed, amongst other things:
(a) that it is incorrect to state that the lease payments on the Mercedes Benz vehicle are made by Upland Sandpiper;[72]
(b) that the application for finance to purchase that vehicle was made in her own name; and
(c) she personally makes the relevant lease payments “when funds permit”.[73]
[72] Affidavit of Farina Abedini affirmed 21 April 2022, paragraph 4, SCB 3340
[73] Affidavit of Farina Abedini affirmed 21 April 2022, paragraphs 4-8, SCB 3340
Documents relied upon by Mrs Abedini in relation to an application to be excused for paying for transcript
54In the course of the transcript application, Counsel for Mrs Abedini produced to the Court and referred to numerous documents.[74] Mrs Abedini was cross-examined in relation some of these documents. This included an “Asset Finance Agreement” between Mrs Abedini and Volkswagen Financial Services Australia Pty Ltd, signed on 8 August 2020.[75]
[74] SCB 3372-3421
[75] SCB 3386-3393
55In several places within that document, Mrs Abedini declared that the Mercedes Benz vehicle was purchased for business purposes.[76]
[76] See for example SCB 3387
56It was also apparent from the “Asset Finance Agreement”, that while the amount of the purchase price which had been financed was $55,000, the total cost of the vehicle was in excess of $76,000. In the document, it was recorded that Mrs Abedini had paid a “Customer Deposit” on the vehicle in the sum of $21,419.49.[77]
[77] SCB 3390; See also Final Tax Invoice in respect of the vehicle purchase, CB 1763
Mrs Abedini’s evidence to the Court
57During her evidence to the Court, Mrs Abedini gave the following relevant evidence:
(a) other than what is set out in her affidavits in support of her application to be excused from paying for transcript, no other funds are available to her to pay for that expense;[78]
[78] T47, L6-10
(b) since filing her affidavit affirmed on 20 April 2022, another three accounts have been referred to, one in her own name with her art business and two in the name of Upland Sandpiper. There are no other accounts that she has control over;[79]
[79] TT49-50
(c) both of her children have “student accounts”;[80]
[80] T50, L8-27
(d) she transfers money into her son’s account, so that he can pay his expenses. Those are sums such as $50 or $100;[81]
[81] T51, L1-14
(e) she has never used her son’s account for her own purposes;[82]
[82] T51, L12-16
(f) she was taken to her son’s account, which was St George Bank (“St George”) account -0239;[83]
[83] CB 1004
(g) she does not know why, on 2 July 2020, and again on 3 July 2020, the sum of $5,000 was transferred from her St George account -7766, into her son’s St George account -0239 and then withdrawn again; [84]
[84] T52, L22-28; CB 1010
(h) she was taken to a similar set of transactions, where, on 3 July 2020, the sum of $5,261 was transferred from her St George account -7766 to her son’s St George account -0239, and then, on 7 July 2020 at 1.11pm, the sum of $5,250 was transferred from her son’s account, back to her account. Four additional, similar transactions were observed to have taken place between 7 July 2020 at 7.17pm and 18 July 2020.[85] In response, Mrs Abedini said “… you may ask himself (sic) … I can’t recall that … but the money is not comes from anywhere and not going anywhere. Is the money that I actually by joke paid to him and I took back. Is that the one?”[86] (emphasis added);
[85] CB 1010-1011
[86] TT52-53
(i) when questioned about her use of the word “joke”, she said “No, no, I sorry, I missed that phrase … I apologise … my son does need the knee surgery. I pay him money and my daughter get upset, I take the money back and show my daughter that, all good, I’m not paying it, don’t get upset …;”[87]
[87] T52, L14-25; the substance of this evidence was repeated at T59, L1-4
(j) she went on to say that she had initially given both her daughter and her son $1,000 but had needed the money and taken it back. She gave evidence about needing to repay that money to her children. She continued to assert that her son needed $4,000 to $5,000 for his surgery;[88]
[88] TT54-55
(k) she later said that she could not remember “what happened exactly”;[89]
[89] T55, L19-30
(l) she asserted that the amounts involved in these transfers were “a small amount of money” and “not relevant to any business … or … to hide money”;[90]
[90] T57, L1-4
(m) she did not know whether either her son’s or daughter’s accounts had been used to receive monies in the course of any money remittance business;[91]
[91] T56, L17-20
(n) she agreed that the movement of money out of her bank account and into her son’s account, would have had the effect of changing the balance in her bank account: “Yes, but not for any reason;”[92]
[92] T57, L15-20
(o) she was taken to records of her daughter’s St George account -3949.[93] She acknowledged that on 29 August 2018, there were three credits from her St George account -7766, into her daughter’s account in the sums of $5,000, $1,000 and $500 respectively. On 31 August 2018, there was a further credit of $500. On 24 September 2018, there was a transfer of $8,000 from her daughter’s bank account to St George account -9843. Mrs Abedini did not know who this last account belonged to.[94] It was later put to her that this was her son’s second account.[95] She did not offer any different explanation, but said that there must be some mistake with this transaction;[96]
[93] CB 969
[94] T59, L7-21
[95] CB 1052
[96] TT64-65
(p) she said that the reason these sums were paid to her daughter were because “she is my daughter”. She said that sometimes she pays her daughter to do acrylic artwork and even though “if it was from somewhere else, I wouldn’t even pay but it is my daughter and I pay her”.[97] She added that the payment of the monies could have been for school fees.[98] She later agreed that if it was a payment of school fees, that would have appeared in the payment description;[99]
[97] T60, L6-14
[98] T60, L 30-31
[99] T61, L19-25
(q) when pressed about why she made payments totalling $7,000 to her daughter, she said “It’s because I give my son $5000”.[100] When reminded that she had earlier said that the reason she had made transactions into and out of her son’s account, was because her daughter had become upset, she said “I think it was a time maybe my daughter was … contact lens, I don’t know. I can’t really remember why I gave her … I don’t remember why I paid her right now.”[101] She then added, “I think she wanted to do a nose surgery once. I don’t remember it ... .;”[102]
[100] T62, L17
[101] T62, L24-31
[102] T63, L1-3
(r) it was put to Mrs Abedini that depending on what day anyone was to look at her bank accounts, the “story may not be as simple as just seeing what’s there to say … that’s the only money you have”, because she has “been using … accounts such as your children’s to move money from time to time.” In response, Mrs Abedini said, “I believe that there is a misunderstanding about this issue – this matter”;[103]
[103] T66, L17-26
(s) she said that the BMW vehicle which she had deposed in her affidavit material was one of her assets, is in fact used by her husband “as administrator for Upland Sandpiper”.[104] She said that she “got money because of that to pay … as a deposit for the Mercedes Benz …”. She said that her son is driving the BMW too;[105]
[104] T67, L1-6
[105] T67, L6-10
(t) she paid the deposit of $21,500 for the Mercedes Benz vehicle. Some came from savings, some was money from her extended family and some was paid on her American Express card;[106]
[106] T71, L4-16
(u) she was taken to her St George account -7766. A debit of $16,419.49 in respect of the Mercedes Benz vehicle was identified on 8 August 2020.[107] Mrs Abedini was unable to give evidence to the Court about where that money had come from, before it was deposited into her account. She was taken to a transaction on 4 August 2020 in the sum of $3,500. She said that came from Upland Sandpiper. She said that it was “definitely [a] deposit from Upland Sandpiper to Mr Abedini”.[108] When asked why that money would have been paid into her bank account, she said that Mr Abedini “gave my account number to them to pay the money”.[109] She said that this was because “I gave him the BMW”.[110] She said that at that time, “I think I got nearly $10,000 … to $50,000 from them or $10,000 maybe … from Homayun … for – he got the BMW … .”;[111]
[107] CB 1147
[108] T77, L17-21
[109] T77, L25-28
[110] T77, L22-24
[111] T80, L20-25
(v) she gave evidence about times where Mr Abedini would ask money remittance clients to make payments into various accounts, depending upon where a debt needed to be paid – for instance school fees.[112] She was taken to other deposits and asked whether this was money paid by money remittance clients. She was unable to recall if this was the case,[113] though later she said that she thought a cash deposit of $3,410 on 27 July 2020, was a money remittance deposit;[114]
[112] T77-79
[113] T79, L13-31, T81, L1-4
[114] T80, L5-7; CB 1144
(w) it was put to her that monies for the deposit for her Mercedes Benz vehicle came from both her son’s bank account and also her husband’s money remittance business. She said that “I just really don’t recall exactly”. She said that if she had been given more notice, she could have told the Court exactly where the monies came from;[115]
[115] T81, L5-31
(x) it was put to her that every month, she has been paying monthly payments on the Mercedes Benz vehicle. She responded to this by raising an arrangement which she has with Ms Fatima Faeghi, where $1,900 is paid into her account and then an equivalent sum is sent to Iran.[116] She then said that this sum was “paying for my home loan”;[117]
[116] T82-83
[117] T82, L18-20
(y) she was taken to an affidavit made by Ms Faeghi,[118] where Mrs Faeghi deposed to the fact that the “pension swapping” arrangement had ended when her mother had died. Mrs Abedini said that she did not know that Mrs Faeghi’s mother had passed away.[119] She later agreed that this had occurred in 2019.[120] Nevertheless, she appeared to suggest that the “pension swapping” arrangement was still in place: “Well, maybe he has other families … ;”[121]
[118] CB 2446-2448
[119] T83, L2-8
[120] T273, L16-18
[121] T83, L9-12
(z) eventually, she agreed that the monthly payment for the Mercedes Benz vehicle is $1,142, which she pays out of her St George account -7766.[122] She agreed that Mrs Faeghi’s arrangement with her “has never had anything to do with car lease payments …”;[123]
[122] T83, L16-21
[123] T84, L2-18
(aa) she agreed that if she sold the Mercedes Benz vehicle and paid out the lease, there would be money left over.[124] As a result of this evidence, the application for Mrs Abedini to be excused from paying for transcript was dismissed;[125]
[124] T85, L17-19
[125] T87, L3-12; TT90-91
(bb) Mr Abedini put in the application for exclusion from the restraining order on behalf of both himself and Mrs Abedini.[126] She agreed that there was no mention in the original application of them being divorced. She agreed that there was no mention in the application of her being the sole owner of the Turramurra property;[127]
[126] T225, L4-15
[127] T225, L18-23
(cc) she agreed that she and Mr Abedini had made an agreement to keep the divorce a secret.[128] She said that she had told the lawyers for the Commissioner that she was “actually divorced” in 2015, when she first met those lawyers. She could not recall whether this was during the examination process at the AAT;[129]
[128] T226, L2-3
[129] T226, L8-31
(dd) she said that she had not told the Court about being divorced for fear of losing her home.[130] She added that “actually, I paid for the house”;[131]
[130] T227, L26-27
[131] T228, L2-3
(ee) she became aware that Mr Abedini was bankrupt in about 2018;[132]
[132] T229, L1-6; CB 2040, paragraph 44
(ff) she knew that the Trustee in Bankruptcy was appearing in some directions hearings in relation to this matter. She knew that he was involved as the trustee of Mr Abedini’s bankruptcy. She understood that the Trustee intended to claim any rights Mr Abedini had in the Turramurra property, for the purposes of dealing with the bankruptcy;[133]
[133] T229, L15-25
(gg) she was taken to her affidavit of 11 June 2019,[134] where she made reference to the fact of the divorce. She agreed that she had not said anything about the divorce or dowry in any official document to the Court, prior to the Trustee in Bankruptcy “getting involved in this case”.[135] She agreed that in her evidence put before the Court, prior to June 2019, she had never claimed that she owned all of the Turramurra property.[136] She denied that she had mentioned this fact in the 2019 affidavit, “because it had become important to you to find a way of claiming that you owned the whole of the property so that the Trustee in bankruptcy couldn’t take any of it”;[137]
[134] CB 1955
[135] T230, L3-23
[136] T230, L24-26
[137] T230, L27-30
(hh) she denied that the value of a dowry is “set” at the time of a marriage. She said that the value of a dowry can increase, but will never decrease;[138]
[138] T232, L16-23
(ii) she said that other than the Turramurra property, she was given things such as a holy Koran, a mirror, candle holders “and the 250 Bahar Azadi coin (sic) ...”.[139] She said that Mr Abedini has not given her the coins, as he gave her the house “instead”;[140]
[139] T233, L3-6
[140] T233, L7-20
(jj) she already owned part of the Turramurra property “because, you know, it’s a joined marriage. When you joined marriage (sic), anything you buy, both of you own it;”[141]
[141] TT233-234
(kk) she did not remember the exact words used by Mr Abedini at the divorce ceremony.[142] It was suggested to her that both Mr Saedi and Mr Jalai actually deposed to different words being used, viz, from Mr Saedi: “I give to my wife the family home,” compared with an assertion from Mr Jalai that he witnessed Mr Abedini “assigning his interest the family home …” to Mrs Abedini. Despite this discrepancy, Mrs Abedini said that the recollection of both of these witnesses was correct;[143]
[142] T234, L2-5
[143] TT234-236
(ll) she went on to say “the home was for both of us and actually, I paid the most - I made a payment … it was my money, the money that actually - I bought it for, I earned”;[144]
[144] T237, L3-6
(mm)she agreed that she has never obtained any certificate of divorce to confirm that the marriage has now been dissolved.[145] She said that no document was signed by any witness to certify that the marriage had been terminated.[146] She has never received any orders from the Family Court of Australia, dissolving her marriage. She said that she went to Legal Aid and also saw a lawyer, but they could not help her because the property was under restraint;[147]
[145] T238, L22-25
[146] T238, L26-27
[147] T239, L1-18
(nn) she was taken to the translation of her marriage certificate.[148] She agreed that the items which she was promised as her dowry, were listed on that document. She reiterated that a dowry could increase, specifying that if a wife has children, “you’re honoured more”.[149] She agreed that part of the dowry was 250 Bahar Azadi gold coins, now worth between $87,525 and $137,500, depending upon whether the Court relies on the valuation of $350 per coin given by the Commissioner,[150] or the valuation of $550 per coin relied upon by Mrs Abedini;[151]
[148] CB 2048
[149] T240, L5-10
[150] Affidavit of Mark Creighton sworn 7 April 2022, paragraph 8, CB 2735
[151] TT240-241
(oo) it was put to her that even taking the top range of the value of the coins, the value of the Turramurra property minus the mortgage in 2014, far exceeded the value of the coins. To this she replied, “I never agreed that it was in exchange for the coins”.[152] She went on to assert that it was fair that she was paid far more for her dowry than had been promised, as “I went through a lot with this man …”;[153]
[152] T242, L4-9
[153] T242, L10-22
(pp) she agreed that she had compromised her asserted position of being a full owner of the property, when she settled with the Trustee in Bankruptcy in the FCC. She said:
“I accepted to pay the trustee because my understanding was, as my solicitor explained to me that, the house is mine and my understanding was that now the trustee has to receive this money, so I accepted to pay the trustee and my understanding was the house will become in my name …”[154]
[154] T244, L2-8
(qq) she was taken to her affidavit affirmed on 13 February 2020.[155] She said that in about 2008, she and Mr Abedini had separated, and that one of the reasons they got back together was “that we buy a house”;[156]
[155] CB 2020
[156] T245, L8-15
(rr) when they left Iran, Mr Abedini had a very successful business that his brother took over the running of. Mrs Abedini was never a director or any sort of official of that business. Her name was never used as an owner of that business. She did not receive any salary or other income from the business. Since they arrived in Australia, all financial things to do with the business “was arranged and managed by Mr Abedini”. She said that she does not know about any of the finances from that business: “I don’t know anything about Mr Abedini;”[157]
[157] TT245-248
(ss) she was taken to paragraph 13 of her affidavit affirmed on 13 February 2020. She acknowledged that in that affidavit, she had said that Mr Abedini “transferred the money we had in Iran to Australia for the purchase of a residential property per his promise”.[158] She said that this was a reference to the money which she said came from the sale of an apartment in Iran.[159] When pressed about the words used in her February 2020 affidavit and also about why, if it was her money that was transferred, it went into Mr Abedini’s bank account, she had no explanation, saying only, “I don’t know how the arrangement was but he send it - at the time we were married … I was trusting him so …”.[160] She said that she did not share the bank account with Mr Abedini.[161] She qualified this by saying that she would not have cared if her money went into Mr Abedini’s bank account “because you were married and you were sharing the money anyway?---Yes”;[162]
[158] T248, L1-7 and L21-22
[159] T248, L8-16
[160] T248, L23-29
[161] T248-249
[162] T249, L16-19
(tt) she was taken to paragraph 28 of her affidavit affirmed on 25 July 2021,[163] in which she had deposed to the fact that it was her money which was transferred from Iran. She initially agreed with, but then denied, the proposition that this version of events was put on affidavit, because she was “trying to show that the funds were not shared funds but they came from you and it was your money specifically”.[164] She said “It’s explained by Mr Abedini to me. I don’t know but that’s what he said, this is the way that he brought the money for us …”;[165]
[163] CB 2036
[164] T250, L15-17, cf, T251, L13-18
[165] T251, L22-25
(uu) it was suggested to her that shortly after the money arrived in Mr Abedini’s accounts in October and November 2008, “it didn’t sit there untouched until 2011 when you bought the property”.[166] In particular, it was put to her that by 3 November 2008, only $409.98 was left in the NAB account into which some of the transfer had been made.[167] She said that she did not know about that: “If it’s not my account, I don’t know anything about it.”[168] Similarly, by 29 October 2008, only $48 remained in the CBA account into which the rest of the transfer had been made.[169] Her response to this was, “At the time I was his wife, I was trusting him and I think he was maybe using it in his business. …”;[170]
[166] T252, L2-4
[167] T253, L23-25; see also CB 2055
[168] T252, L3-15; see also similar evidence given at T261-262 and T266, L3-9
[169] CB 1989
[170] T255, L3-9
(vv) it was put to her that “there’s nothing to show any of the withdrawals being spent [on] the purchase of a property two and a half years later, …” To this, she replied, “… his business was a money remittance and I think he - I don’t know. I can’t talk for Mr Abedini.”[171] When asked if there was any explanation she could give which would link the money that was transferred from Iran to the purchase of a property, she replied, “I don’t know, to be honest”.[172] Despite this, she continued to maintain that the monies that were transferred from Iran were used to buy the Turramurra property;[173]
[171] T254, L2-7
[172] T254, L17-20; see also T255, L20-25
[173] T255, L26-31; see also similar evidence at T266, L10-14 and T268, L4-6
(ww) at the time that the Turramurra property was purchased, she did not know that Mr Abedini was conducting a money remittance business. She became aware of that later.[174] She denied having any knowledge about the nature of Mr Abedini’s money remittance business.[175] She said that she had no role in the money remittance business.[176] She denied that any monies from the money remittance business had ever been used by her to pay household expenses, such as the mortgage on the Turramurra property. She denied any knowledge that Mr Abedini’s money remittance business was used by Mr Isfhani to transfer funds from Iran.[177] She was shown numerous transactions marked by names of people in her husband’s bank accounts in October 2010.[178] It was suggested to her that the designation of these funds by name, was consistent with those funds being referable to clients of the money remittance business. She denied having any knowledge of these matters;[179]
[174] TT257-258
[175] See for example T258, L27-29
[176] T259, L26-27
[177] T260, L24-30
[178] CB 2283
[179] TT262-263
(xx) in relation to the purchase of the Turramurra property, she said she had no discussions with Mr Isfhani. She was not involved in the application for the mortgage: “I only went, saw a house, liked the house. We talked about the price of the house and then Mr Abedini arranged the purchase;”[180]
[180] T264. L1-12
(yy) she declared a total of $24,000 in her taxation returns over the period 2009 to 2014.[181] She agreed, on this basis, that “any money to pay for the deposit or the mortgage wasn’t coming from … [her] own Australian earnings [in that period]”;[182]
[181] T265, L12-14
[182] T265, L15-17
(zz) she agreed that Mr Abedini’s taxation return for the 2011 financial year was not higher than $22,500. She agreed that the money for the Turramurra property was not from his income in Australia;[183]
[183] T265, L18-23
(aaa)she agreed that there was no record in evidence of the sale of any apartments in Iran;[184]
[184] TT265-266
(bbb)she did not have any knowledge of where the monies to pay the settlement sum came from. She agreed that they did not come from her bank account;[185]
[185] TT266-267
(ccc)she was not familiar with the bank account name “Greenback International”. She did not remember whether this was the bank account from which Mr Abedini conducted his money remittance business.[186] She did not know that this was the account from which some of the settlement funds for the purchase of the Turramurra property came;[187]
[186] T267, L14-19
[187] T267, L23-31
(ddd)she agreed that most of the mortgage repayments on the Turramurra property came out of Mr Abedini’s accounts;[188]
[188] T268, L26-28
(eee)she was taken to paragraph 16 of her affidavit affirmed on 13 February 2020,[189] in which she had deposed to the fact that maintenance of her mortgage and expenses was paid out of the sum of “$597,789.24 … brought from funds in Iran in 20 transactions [made] since 2013, not through Mr Abedini’s money exchange business, but using various remitters registered in Australia”.[190] She could not say why those funds were not remitted through Mr Abedini’s business. She could not recall whether she had organised any of those transactions,[191] adding “Mostly has been arranged by Mr Abedini”.[192] She agreed that the information about this in her affidavit was based on what Mr Abedini had told her.[193] She could not say where the documents evidencing any of these transactions were.[194] She was unable to point to any document which proved that the mortgage for the Turramurra property was paid from these monies: “… this all managed by Mr Abedini (sic). I don’t know how.”[195] She said “we did brought money from Iran. That’s how we lived in Australia because for the first eight years, … we were under business visa, we didn’t have Medicare. … we were depends on money we bring in Iran, that’s all” (sic);[196]
[189] CB 2022
[190] T269, L1-7
[191] T269, L9-23
[192] T270, L23-25
[193] TT270-271
[194] T271, L4-8
[195] T271, L16-26
[196] T269, L16-21
(fff)she was taken to the Hicks Report.[197] She understood that Mr Hicks had been provided with various bank accounts that had been identified as belonging to her and Mr Abedini, and that Mr Hicks had analysed those documents for the period between 1 July 2009 and 17 November 2014 (“the analysis period”).[198] She denied knowledge of some of the bank accounts, saying “This is Mr Abedini’s account”;[199]
[197] CB 32
[198] T279; CB 37
[199] T280, L4-12
(ggg)she agreed that she knew nothing about many of the accounts which had been analysed.[200] She agreed that to the extent that any of the monies from those accounts can be traced into the Turramurra property, she is unable to dispute that.[201] She later said that she was not aware of the existence of any accounts that are not in her name;[202]
[200] T281, L1-2; CB 37 and 47-51
[201] T281, L3-10
[202] T282, L18-22
(hhh)she was taken to paragraph 10.2.3 of the Hicks Report,[203] where he concluded that as at 1 July 2009, the balance in all of the accounts analysed, was just over $69,000. It was suggested, on this basis, that the sum of $330,807.69 which she said had been brought in 2008 to Australia from Iran for the purposes of purchasing the Turramurra property, could not possibly have gone to paying for the property, since at most, by 1 July 2009, there was only $69,000 left in all of the accounts. She said that she understood this suggestion, but did not agree with it. She reiterated that she did not know anything about these accounts and had no idea about how Mr Abedini was operating his business;[204]
[203] CB 58
[204] TT283-284
(iii) she was taken to an analysis made by Mr Hicks of the total value of the amount in Australian dollars, paid into the accounts during the analysis period. She acknowledged that sum to be more than AUD 17 million.[205] She was shown the total value of funds paid into those accounts in Australian dollars for 2010-2011, being the financial year in which the Turramurra property was purchased. She acknowledged that sum to be more than AUD 3.5 million.[206] It was suggested to her that there was no evidence that she had anywhere near AUD 3.5 million of assets in Iran. To this she replied: “This is people’s money, people transfer money. Mr Abedini had a money remittance job. I have no idea about it. You can ask him, not me.”[207] She repeated evidence to similar effect throughout this part of her cross-examination;
[205] CB 358; T285, L13-17
[206] T285, L25-27
[207] T285-286
(jjj) she agreed that the Hicks Report showed that in the financial year ending 30 June 2010, there was $73,800 declared by Mr Abedini as business income.[208] The taxable income of the business was declared to be -$7,315, after expenses were deducted.[209] She was taken to the table entitled “Source and Application of Funds”, annexed to the Hicks Report.[210] She was also taken to the income and expense figures declared by Mr Abedini for the financial year ending 30 June 2011, which disclosed total business income of $129,416 and the taxable income of the business as being $22,509 after the deduction of expenses. It was suggested to her that the amounts shown in the table as being the total amount of transactions for the financial year ending 30 June 2011 – namely more than AUD 3.560 million – far exceeded the figures she had been taken to evidencing declared income for the financial year ending 2011. She replied, “I believe your forensic accountant’s made a mistake. … there is no way, if somebody has that much money [they] live like us …”;[211]
[208] T289, L17-20
[209] T289, L29-30
[210] CB 358
[211] T290, L11-30
(kkk)it was suggested to Mrs Abedini, that looking at the table prepared by Mr Hicks for this period, even taking into account monies attributed to money remittance activities, there was still a sum of AUD 2.216 million, the receipt of which could not be explained. To this she replied, “I don’t know this gentleman but I am sure that number definitely is not right”. She doubted the accuracy of the Hicks Report on several occasions during her evidence.[212] She said that no one had proved to her that the report is accurate.[213] She later said that she did not wish to comment on the figures, because she does not know anything about it;[214]
[212] See for example T297, L14-16
[213] T297, L15-16
[214] TT292-293
(lll) she agreed that in her July 2021 affidavit, she had deposed to having assets which, in 2011, were valued at about AUD 1.28 million.[215] She agreed that this did not total anything like the figures set out in the Hicks Report.[216] She agreed that she had included in her list of Australian assets, the Orchid Persian Restaurant operated by Mr Abedini. She also agreed that she had not made mention of Mr Abedini’s money remittance business in this affidavit.[217] She said that she mentioned the restaurant business and not the money remittance business, because “… Orchid Persian Restaurant had an office, had a restaurant place, money remittance of Mr Abedini, he didn’t have an office … I don’t know about this … I cannot say anything about his business in that time. I have no idea about it.”[218] She later said that she did not mention the money remittance business because “… it wasn’t really a business to be mentioned because to me, he couldn’t make enough money …”;[219]
[215] TT293-294; CB 2037
[216] T294, L14-16
[217] TT294-296
[218] T296, L4-9
[219] TT297-298
(mmm)she was taken to her statement of assets as at June 2019,[220] where she had listed that she had three shops in Tehran valued at about AUD 200,000 which were “received as part of my dowry”. She denied that this was yet another payment in lieu of her dowry. She said that Mr Abedini “actually stated that everything that he has is for his children and I. It’s not because of this, no. It is a gift, dowry is a gift.”[221] When pressed about the evidence she had given earlier as to what comprised her dowry, she said that she “forgot” to mention the shops in Tehran;[222]
(e) lastly, and most significantly, in considering this matter, I must have regard to the objects of the Act, which I have referred to above. In this regard, I accept the submission made by the Commissioner that to grant the orders sought by Mrs Abedini, would be to undermine the effect of the restraining order, by diluting the value of the Turramurra property. I also accept that such an order would apportion, without true basis and contrary to the findings I have made above, the value of the asserted interests in the property.
253In those circumstances, Mrs Abedini’s application for declarations and orders under s39 of the Act, is refused.
The Commissioner’s application for forfeiture
254The Commissioner’s application for forfeiture is made pursuant to both s47 and s49 of the Act.
255As set out above, to make an order that certain property be forfeited under s47 of the Act, I must be satisfied to the Briginshaw standard, inter alia, that a person whose conduct or suspected conduct formed the basis of the restraining order, engaged in conduct constituting one or more serious offences.
256It was submitted by the Commissioner and accepted by Counsel for the applicant, that the relevant persons whose conduct formed the basis of the restraining order, includes Mr Abedini.[430]
[430] T767, L17-25
257In support of its applications for forfeiture, the Commissioner relied, inter alia, upon the alleged contravention of s400.9 of the Criminal Code.
258To make an order that certain property be forfeited under s49 of the Act, I must be satisfied of certain things, including either that “the property is proceeds of one or more indictable offences”[431] or that “the property is an instrument of one or more serious offences”.[432]
[431] Section 49(c)(i) of the Act
[432] Section 49(c)(iv) of the Act
259In relation to the Commissioner’s applications for orders for forfeiture, the Commissioner bears the onus of satisfying the Court to the relevant standard, that the applicable test for forfeiture is satisfied. The Commissioner is not required to prove the commission of any particular offence by any particular person at a particular time or place.
260It is not in dispute that the pre-conditions in each of s47(1)(a) and (b) and s49(1)(a), (b) and (e) are met in this case.
261I have made findings above which mean that I am satisfied to the Briginshaw standard, that Mr Abedini committed an offence or offences against s400.9 of the Criminal Code, which offences involved a benefit to him exceeding $10,000.
262The penalty for a contravention of s400.9 of the Criminal Code includes imprisonment for three years. Thus, the relevant offence or offences against s.400.9 of the Criminal Code, are both indictable and also a serious offences for the purposes of the Act.[433]
[433] Section 4G Crimes Act 1914 (Cth)
263On that basis, I am satisfied to the requisite standard of each of the following matters:
(a) that a person whose conduct or suspected conduct formed the basis of the restraining order, engaged in conduct constituting a serious offence; and
(b) that the Turramurra property is proceeds of both an indictable offence and a serious offence, namely an offence against s400.9 of the Criminal Code; and
(c) that the Turramurra property is an instrument of both an indictable offence and a serious offence, namely an offence against s400.9 of the Criminal Code.
264I note that the discretion not to make an order for forfeiture in certain circumstances, which appears within s47(4) and s49(4) of the Act, is only enlivened, if, inter alia, I am satisfied that the Turramurra property is not proceeds of an offence. As referred to above, I have reached the conclusion that the Turramurra property is proceeds of an offence. Given this, the discretion is not able to be exercised.
265In those circumstances, I grant the Commissioner’s application for forfeiture of the Turramurra property under s47 of the Act. As I have granted the Commissioner’s application for forfeiture under that section, there is no need for me to consider the application for forfeiture made under s49 of the Act. However, for the avoidance of doubt, I note that the provisions for making a forfeiture order under s49 of the Act, are also satisfied. Thus, I would have granted the Commissioner’s application for forfeiture under s49, if that had been the only application for forfeiture that had been made.
Mrs Abedini’s application for exclusion from forfeiture
266Under s73 of the Act, a Court that made a forfeiture order must make an order excluding a specified interest in property from forfeiture application for exclusion from forfeiture may be made, if (relevantly to this application):
(a) the forfeiture order specifies property in which the applicant has an interest; and
(b) if the forfeiture order was made under s47 or s49 of the Act, the Court is satisfied that the applicant’s interest is neither:
(i)proceeds of unlawful activity; nor
(ii)if the offence on which the order was based is a serious offence, an instrument of any serious offence.
267For the reasons set out above, Mrs Abedini has not satisfied me to the requisite standard, that the Turramurra property is neither the proceeds of unlawful activity nor an instrument of any serious offence.
268In those circumstances, Mrs Abedini’s application for exclusion from forfeiture must be dismissed.
Mrs Abedini’s application for compensation
269As set out above, under s77(1) of the Act, a compensation order may only be made if:
“(a)a person … has applied for a compensation order; and
(b)the court is satisfied that the applicant has an *interest in the property specified in the forfeiture order or in the application for the forfeiture order; and
(c)the court is satisfied that a proportion of the value of the applicant’s interest was not derived or realised, directly or indirectly, from the commission of any offence; and
(d)the court is satisfied that the applicant’s interest is not an instrument of any offence; and
(e)in the case of a court that is hearing or is to hear an application for a forfeiture order—the court makes the forfeiture order.”
270The provisions of s78(1) of the Act specify when an application for a compensation order may be made before a forfeiture order has been made. There was no dispute that the provisions of that section were satisfied in this case.
271Similarly:
(a) it was not in dispute that Mrs Abedini satisfied the provisions of s77(1)(a) of the Act; and
(b) as set out above, I have found that Mrs Abedini does have a relevant interest in the Turramurra property, namely a right to occupy that property.
272However, having concluded that:
(a) the Turramurra property, which is held on trust for Mr Abedini by Mr Isfhani, is either the proceeds of unlawful activity and/or an instrument of a serious offence; and
(b) such interest as Mrs Abedini has in the Turramurra property, is directly or indirectly derived from Mr Abedini
I am unable to be satisfied that any proportion of the value of her interest, was not derived or realised, directly or indirectly, from the commission of any offence.
273In those circumstances, the application for a compensation order must be dismissed.
Application for relief from hardship
274The relevant provisions of s72 of the Act and the definition of the term “dependant”, are set out above.
275As set out above, the relevant objects of the confiscation scheme established under the Act include:[434]
(a) to deprive persons of proceeds of offences and benefits derived from offences against the laws of the Commonwealth; and
(b) to deprive persons of proceeds of unexplained wealth amounts that the person cannot satisfy a court were not derived or realised, directly or indirectly, from certain offences;
(c) to punish and deter persons from breaching the laws of the Commonwealth; and
(d) to enable law enforcement authorities to effectively trace proceeds, benefits and unexplained wealth amounts.
[434] Section 5 of the Act
276The order sought by Mrs Abedini under this section was “a hardship order … for an amount to be determined by the court to be paid to each of the Applicant’s dependants, Paris Abedini (born March 2003) and Parsia Abedini (born August 2004) (Children) to relieve the hardship which will be caused to the Children by the forfeiture of the Property.”
277The evidence in relation to this matter was as follows:
(a) since its purchase in 2011 to the date of her 8 April 2022 affidavit, Mrs Abedini and her children have lived in the Turramurra property;[435]
(b) Mrs Abedini is an artist, and her home is also her artist’s studio and art gallery. If Mrs Abedini loses her home, she will lose her business.[436] Both Paris and Parsia live off their mother’s work as an artist.[437] Paris works part time in her mother’s art studio. She hopes to keep working on developing her mother’s business.[438] All of Paris’ and Parsia’s livelihood, friendship and connections belong to the area around where they live;[439]
(c) Parsia Abedini goes to a local school and Paris Abedini attends a nearby university.[440] Parsia is hoping to attend the same university as Paris. Living in the local catchment area for that university will be advantageous to Parsia in calculating his ATAR score;[441]
(d) Mrs Abedini and her children have suffered from depression, anxiety and stress because of the fear they have of losing the family home. They have required psychological care as a result;[442]
(e) should the Turramurra property be forfeited, depending upon Mrs Abedini’s income, she may need to rely on public housing;[443]
(f) Mrs Abedini was previously employed, but recently lost her job. That is because the company who employed her had a contract which has now ended.[444] She has earned about $50,000 so far in the 2022 financial year. She has exhausted her savings paying for legal representation in this matter. She is indebted to her current solicitors.[445] She has no retirement savings. She had planned to sell the Turramurra property to fund her retirement when the children leave home;[446]
(g) while Mrs Abedini has some assets in Iran, she is unable to sell these items and she believes that there are international sanctions in place, which prevent her from selling those items or getting money from Iran;[447]
(h) Mrs Abedini is employed by and is a director of Upland Sandpiper, a company that trades as a money remittance business. Her ex-husband manages this business, and she receives a director’s fee from time to time, which helps with her living expenses;[448]
(i) Mrs Abedini is now fifty-four years of age. Her physical and mental health is failing. She does not know how long she can continue to work.[449]
[435]Affidavit of Farina Abedini affirmed 8 April 2022, paragraph 7, CB 2939; affidavit of Paris Abedini affirmed 8 April 2022, paragraph 3, CB 2945; affidavit of Parsia Abedini affirmed 8 April 2022, paragraph 3, CB 2948
[436] Affidavit of Farina Abedini affirmed 8 April 2022, paragraph 8, CB 2939
[437]Affidavit of Paris Abedini affirmed 8 April 2022, paragraph 9, CB 2945; affidavit of Parsia Abedini affirmed 8 April 2022, paragraph 14, paragraph 12, CB 2949
[438] Affidavit of Paris Abedini affirmed 8 April 2022, paragraph 6, CB 2945
[439]Affidavit of Paris Abedini affirmed 8 April 2022, paragraph 7, CB 2945; affidavit of Parsia Abedini affirmed 8 April 2022, paragraph 9, CB 2949
[440]Affidavit of Paris Abedini affirmed 8 April 2022, paragraph 5, CB 2945; affidavit of Parsia Abedini affirmed 8 April 2022, paragraph 5, CB 2949
[441]Affidavit of Farina Abedini affirmed 8 April 2022, paragraphs 9 and 10, CB 2939; affidavit of Parsia Abedini affirmed 8 April 2022, paragraph 7-8, CB 2949
[442]Affidavit of Farina Abedini affirmed 8 April 2022, paragraphs 12, 13 and 22, CB 2940; affidavit of Paris Abedini affirmed 8 April 2022, paragraphs 8-10, CB 2945; affidavit of Parsia Abedini affirmed 8 April 2022, paragraph 11, CB 2949-2950
[443] Affidavit of Farina Abedini affirmed 8 April 2022, paragraphs 14 and 22, CB 2940
[444] Affidavit of Farina Abedini affirmed 8 April 2022, paragraph 15, CB 2940
[445] Affidavit of Farina Abedini affirmed 8 April 2022, paragraphs 16 and 18, CB 2940
[446] Affidavit of Farina Abedini affirmed 8 April 2022, paragraph 21, CB 2941
[447] Affidavit of Farina Abedini affirmed 8 April 2022, paragraphs 24-27, CB 2941-2942
[448] Affidavit of Farina Abedini affirmed 8 April 2022, paragraph 19, CB 2941
[449] Affidavit of Farina Abedini affirmed 8 April 2022, paragraph 20, CB 2941
278There are numerous cases which consider the concept of “hardship” in the context of a confiscations regime. As to the discretion to refuse to make a forfeiture order on hardship grounds (noting that the state confiscations regime sets out a test which differs procedurally from that set out in the Act), in Director of Public Prosecutions v Lake,[450] Kirby P (as he then was), stated:
“… In considering hardship, it is necessary to bear in mind that, of necessity, in achieving its objects, the Act will cause a measure of hardship in the deprivation of property. Indeed that is its intention. It is not that kind of hardship, therefore, that can give rise to the relief … The provision for relief … must not be so interpreted as to frustrate the achieving of the purpose of Parliament in enacting the exceptional provisions of the Act. Something more than ordinary hardship in the operation of the Act is therefore meant. Otherwise the Act would have, within it, the seeds of its own [in]effectiveness in every case.”
(emphasis added)
[450] (1989) 44 A Crim R 63 at 66-67
279In Director of Public Prosecutions v Ali (No 2),[451] Hargrave J summarised what he described as the “accepted approach” disclosed by the authorities concerning the hardship discretion in the context of discretionary forfeiture, viz:
“102… First, the hardship discretion is only enlivened when something more than ordinary hardship in the operation of the Act is demonstrated. Second, in exercising the discretion, the Court considers the degree of criminality and the circumstances of the offender, including the sentence and pecuniary penalty imposed for the offence. Third, the Court considers whether, in light of the hardship and any other relevant factors, a forfeiture order would be severely disproportionate to the degree of criminality and the circumstances of the offender. Where the property in question is a family home, the circumstances of the family and the effect upon the family will always be relevant and may be decisive; but each case must always depend upon its own facts.
103The hardship discretion … where it arises following a civil forfeiture order, arises in the absence of a conviction. Accordingly, there is no proven criminality and no sentence of pecuniary penalty imposed on an offender. In these circumstances, although guidance can be obtained from the discretionary forfeiture cases, the Court must adopt a different starting point as the basis for its consideration of proportionality in the context of hardship. In my view, the starting point is the degree of involvement by the property owner or owners in the commission of the relevant offence. … .”
[451] [2010] VSC 503
280In Commissioner of theAustralian Federal Police v Goldstein (a pseudonym),[452] his Honour Judge Saccardo dealt with a forfeiture application under s49(1) of the Act, together with a related application for relief from hardship, under s72 of the Act.
[452] [2015] VCC 1425 (“Goldstein”)
281Having considered the submissions put by the parties, his Honour approved the following concepts relevant to the consideration of applications for relief from hardship:
(a) the concept of hardship under the Act must involve a position in which the imposition of a forfeiture order has the effect of depriving an innocent dependent of a benefit (potential or otherwise), the right to which existed prior to, and arose independently of, the alleged criminal activity;[453]
(b) accordingly, that hardship involves a change to the detriment of a position which pre-existed the commission of the alleged offending;[454]
(c) such change in the status quo to the detriment could not arise when a forfeiture order is made with respect to the mere proceeds of criminal activity, by reason of the fact that:
(i)proceeds of crime come into existence and are generated by the criminal activity; and
(ii)it could not be said that such proceeds provide any benefit which pre-existed the criminal activity or arose independently of that activity;[455] and
(iii)such a finding would result in a position which is contrary to one of the principal objects of the Act, namely “to deprive persons of the benefits derived from offences against the laws of the Commonwealth”;[456]
[453] Ibid at paragraph [54]
[454] Ibid at paragraph [54]
[455] Ibid at paragraph [54]
[456] Ibid at paragraph [60], referring to s5(a) of the Act
(d) the situation may be different when the property is also an instrument of crime, and where an innocent dependant derives a benefit from that instrument, which benefit arose independently of that criminal activity;[457]
(e) in such a case, the issue which then arises for the consideration of the Court, is whether or not any of the property the subject of the proposed forfeiture order, can be identified as being an instrument of the relevant criminal activity and not the proceeds of that activity.[458]
[457] Ibid at paragraph [61]
[458] Ibid at paragraph [63]
282Reference was also made by the Commissioner to the case of Meskovski v Director of Public Prosecutions,[459] which considered a hardship application in the context of the Victorian State confiscations regime. It should be noted that under the relevant Victorian law, a Court must find that there is “undue hardship”, in order to grant the relief sought.
[459] [2018] VSCA 293
283On that basis, it was submitted on behalf of Mrs Abedini, that the failure of the Commonwealth Parliament to include the word “undue” in combination with the word “hardship” in the Act, demonstrates that ordinary hardship flowing from the usual operation of the Act, is enough to give rise to the discretion to grant relief.
284I do not agree. That submission overlooks the fact that the cases to which I was referred, acknowledge as a fundamental principle, the need to preserve the effectiveness of the confiscations regime. As was observed by Kirby J in DPP v Lake,[460] granting relief from hardship that would ordinarily flow from the operation of such a scheme, would be to frustrate the purpose of the Parliament in enacting the exceptional provisions of the Act. A similar observation was made by Judge Saccardo in Goldstein.[461] It is axiomatic that such an interpretation would render the confiscations regime under the Act, completely ineffective. I reject the submission made on behalf of Mrs Abedini in relation to this matter.
[460] Ibid
[461]Supra
285I have previously found that the Turramurra property is both proceeds of an indictable offence and an instrument of an indictable offence.
286Similarly, an analysis of the evidence set out above reveals that there is no part of the Turramurra property which is an instrument of an indictable offence, which is not also the proceeds of that offence.
287In those circumstances, having regard to the relevant case law, I find that it would be contrary to the purposes of the Act to grant the application for hardship on behalf of the children, despite the fact that I accept that they are innocent dependents of Mr Abedini. To do so would defeat the key purposes of the Act.
288Even if I am wrong in relation to this conclusion, I make the following observations about the substance of the evidence before the Court in relation to this matter:
(a) earlier in this judgment, I made findings as to the credibility of Mrs Abedini. Those findings are set out in detail above. Given those findings, in the absence of independent and objective evidence of impecuniosity, and taking into account the unchallenged evidence of the vast sums of money which have flowed through both Mr and Mrs Abedini’s bank accounts in the period 2009-2014, I am unable to rely on the uncorroborated assertion in Mrs Abedini’s affidavit that if the Turramurra property becomes the subject of a forfeiture order, she and/or her children, will become homeless, or that she will lose her business;
(b) I note once again, that Mr Abedini, who presently lives with his children in the Turramurra property and has particular and relevant knowledge of the matters which form the basis of my considerations in this application, has not given any evidence to the Court about the effect which the making of a forfeiture order would have upon his children. It is open to me to conclude that any evidence which he may have been able to give, would not have assisted the application, and I do so;
(c) in those circumstances, despite any assertions to the contrary, there is no evidence upon which I could be satisfied to the requisite standard, that if the Turramurra property is the subject of a forfeiture order, either Paris or Parsia will become homeless, or indeed suffer any financial detriment;
(d) similarly, the Commissioner submitted, and I accept, that there is no evidence before the Court of what sum it is asserted would alleviate such hardship as may exist. In the absence of such evidence, no order for relief against hardship ought be made.
289In those circumstances, the application for relief from hardship under s72 must be refused.
Conclusion and Orders
290For the reasons set out above:
(a) the application for exclusion from the restraining order brought by Mr Abedini is refused, with costs;
(b) the application for exclusion from the restraining order brought by Mrs Abedini is refused;
(c) the application for ancillary orders brought by Mrs Abedini is refused;
(d) the Commissioner’s application for forfeiture is granted;
(e) the application for exclusion from forfeiture brought by Mrs Abedini is refused;
(f) the application for compensation brought by Mrs Abedini is refused;
(g) the application for relief from hardship is refused.
291I will hear the parties in relation to the question of costs as between the Commissioner and Mrs Abedini.
Annexure “A”
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