Akhtar and Gaber (No. 2)

FAMILY COURT OF AUSTRALIA

Akhtar & Gaber (No. 2) [2021] FamCAFC 28

Appeal from:

Akhtar & Gaber [2020] FamCA 298

Appeal number(s):

EAA 67 of 2020

File number(s):

PAC 3652 of 2013

Judgment of:

ALDRIDGE, WATTS & AUSTIN JJ

Date of judgment:

26 February 2021

Catchwords:

FAMILY LAW – APPEAL – Binding financial agreement – Where the parties’ marriage agreement is not a financial agreement recognised by Pt VIIIA of the Family Law Act 1975 (Cth) – Where the marriage agreement does not oust the jurisdiction of the Court to make orders under s 79 of the Act – Property settlement consent orders – Where the primary judge dismissed the appellant’s application pursuant to s 79A(1) of the Act – Disqualification – No apprehension of bias – No error by the primary judge – Appeal dismissed – No order as to costs.

Legislation:

Family Law Act 1975 (Cth) Pts VIII, VIIIA, ss 4, 71A, 75, 79, 79A, 90B, 90C, 90G, 90KA

Cases cited:

Antoun v The Queen (2006) 224 ALR 51; [2006] HCA 2

Ebner v Official Trustee in Bankruptcy (2000) 205 CLR 337; [2000] HCA 63

Johnson v Johnson (2000) 201 CLR 488; [2000] HCA 48

Minister for Immigration and Multicultural and Indigenous Affairs v B (2004) 219 CLR 365; [2004] HCA 20

Division:

Appeal Division

Number of paragraphs:

39

Date of hearing:

18 February 2021

Place:

Sydney

Appellant:

Litigant in person

Solicitor for the Respondent:

N J Papallo Lawyers

ORDERS

EAA 67 of 2020
PAC 3652 of 2013

APPEAL DIVISION OF THE FAMILY COURT OF AUSTRALIA

BETWEEN:

MR AKHTAR

Appellant

AND:

MS GABER

Respondent

ORDER MADE BY:	ALDRIDGE, WATTS & AUSTIN JJ
DATE OF ORDER:	26 FEBRUARY 2021

THE COURT ORDERS THAT:

1.The appeal be dismissed.

2.There be no order as to costs.

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

Note: This copy of the Court’s Reasons for judgment may be subject to review to remedy minor typographical or grammatical errors (r 17.02A(b) of the Family Law Rules 2004 (Cth)), or to record a variation to the order pursuant to 17.02 Family Law Rules 2004 (Cth).

IT IS NOTED that publication of this judgment by this Court under the pseudonym Akhtar & Gaber (No. 2) has been approved by the Chief Justice pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth).

REASONS FOR JUDGMENT

ALDRIDGE, WATTS & AUSTIN JJ:

INTRODUCTION

1. On 17 August 2017, a judge of the Family Court of Australia, by consent, made property settlement orders between Mr Akhtar (“the appellant”) and Ms Gaber (“the respondent”) (“the consent orders”). The orders provided for the appellant to transfer a property at Suburb E, to the respondent and to pay her $60,000. Otherwise, each party was to retain the property held by them. At the time, each party was represented by a lawyer.

2. On 24 April 2019, the appellant filed an Amended Initiating Application which sought to set aside the consent orders pursuant to…