AKHTAR & GABER

[2018] FamCA 1043

FAMILY COURT OF AUSTRALIA

AKHTAR & GABER [2018] FamCA 1043

FAMILY LAW – PRACTICE AND PROCEDURE – Application for review of Registrar's decision – Application Dismissed

Family Law Act 1975 (Cth) s 79A(1A)

APPLICANT: Mr Akhtar

RESPONDENT: Ms Gaber

FILE NUMBER: PAC 3652 of 2013

DATE DELIVERED: 16 November 2018

PLACE DELIVERED: Parramatta

PLACE HEARD: Parramatta

JUDGMENT OF: Foster J

HEARING DATE: 16 November 2018

REPRESENTATION

APPLICANT – SELF-REPRESENTED LITIGANT: Mr Akhtar in person

SOLICITOR FOR THE RESPONDENT: Mr Kouchoo of NJ Papallo Lawyers

Orders Made 16 November 2018

1. The Application in a Case filed 30 July 2018 as amended by the Amended Application in a Case filed 21 September 2018 is dismissed.

2. Any Application Initiating proceedings under section 79A be filed and served by no later than Friday, 18 January 2019.

3. The costs of both parties of today be reserved.

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

IT IS NOTED that publication of this judgment by this Court under the pseudonym Akhtar & Gaber has been approved by the Chief Justice pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth).

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 r 17.02 Family Law Rules 2004 (Cth).

FAMILY COURT OF AUSTRALIA AT PARRAMATTA

FILE NUMBER: PAC 3652 of 2013

Mr Akhtar

Applicant

And

Ms Gaber

Respondent

EX TEMPORE REASONS FOR JUDGMENT

1. In this matter, the relevant application before the Court is an Application in a Case filed by the husband on 12 September 2018 seeking to review the Registrar’s orders made on 4 September 2018.  The Registrar’s orders as noted on the bench sheets are provided as follows:

   (1)In relation to the husband’s Application in a Case filed on 3 September 2018, the husband has withdrawn the application.  He was directed to lodge his application for leave to appeal with the Sydney Registry. 

   (2)In relation to the husband’s Application in a Case filed 30 July 2018 (an enforcement application), the Registrar made the following orders:

   (a)The applicant to file and serve an Amended Application in a Case and any further affidavit within 28 days setting out the orders he seeks in a proper form.  He is to file one affidavit from each witness.

   (b)The application is listed for mention on 8 October 2018 at 11.00 am.

2. The Registrar, otherwise, noted that the wife’s Application in a Case filed on 9 May 2018 had been dealt with. 

3. In terms of the relevant history, circumstances are as follows.  Final property orders were made by consent on 17 August 2017 as follows:

   UPON NOTING THE APPEARANCE OF [MR F] SOLICITOR ON BEHALF OF THE WIFE/MOTHER WHO MENTIONS THE MATTER BY CONSENT AND NOTING THAT [MR G] OF COUNSEL IS INSTRUCTED ON BEHALF OF THE HUSBAND/FATHER

   BY CONSENT, IT IS ORDERED THAT

   (1)That within 28 days, the husband shall do all acts and things to transfer to the wife all his right, title and interest in the property situated at D Street, Suburb E (Lot … in deposit plan …) (“the Suburb E property”), and the husband shall transfer title to the wife unencumbered of any mortgages or liabilities, and the Husband shall do all acts and sign all documents to ensure the wife is indemnified in relation to any current mortgages, or encumbrances on the Suburb E property.

   (2)That the husband shall pay to the wife the sum of $60,000.00 in cash by paying the first amount of $30,000.00 within 28 days, and a further $30,000.00 within the next 28 days of the making of these orders, with these amounts to be paid to the wife’s solicitor [H] Solicitors.

   (3)Upon the wife receiving the $60,000.00 above, the wife shall release the Husband from any liability for valuation costs, and the Costs orders made in this Court on 9 August 2017 and 15 March 2016, and each party shall otherwise bear their own costs in the proceedings.

   (4)That both parties shall thereafter retain to the exclusion of the other, any assets, including real property in Australia and [Country B], superannuation, motor vehicles, shares, money in bank accounts, and superannuation currently held in their respective names.

   (5)That both parties shall retain to the exclusion of the other any liabilities currently in their respective names.

   (6)That the Husband shall sign all documents and things necessary to allow the parties’ divorce to be registered in [Country B], and to that effect the Husband shall sign the Power of Attorney to solicitor [Mr F] of [H] Solicitors to act on his behalf.

   (7)That in the event that either party is unable or unwilling to execute a document pursuant to these orders, then a Registrar of the Family Court at Parramatta is empowered, pursuant to s 106A of the Family Law Act 1975, to execute such document in the name of the person ordered to execute the document and to do all things necessary to give validity and operation to the document.

   (8)That if the payment in Order 2 is not made within two months of the date of these Orders, the parties shall do all acts and things necessary to effect the sale the property at J Street, Suburb K (Lot … in …) and the wife shall be appointed as trustee for the sale of the property and as trustee shall do all acts and things necessary to effect the sale including signing documents, authorising the payment of sale funds and liaising with and instructing the real estate agent which she chooses to appoint to conduct the sale by auction.

   (8)(i) The proceeds of sale shall be applied as follows, and in the following order:

   (a)Payment of real estate agent, advertising, conveyancing and legal fees in relation to the sale;

   (b)Payment of any mortgage encumbering the property;

   (c)Payment of any outstanding rates due on property at settlement;

   (d)Payment to the wife of $60,000.00 plus interest at the rate specified in the Family Law Act and Rules, from the date of these orders to the date of payment, to the wife;

   (e)Payment to the mortgagor;

   (f)Payment of the balance to the husband.

   (9)All previous property orders are discharged and any outstanding property applications are dismissed.

   NOTATION:

   (1)These Orders finalise the property proceedings against the Husband’s children [Mr L Akhtar], [Mr M Akhtar] and [Ms N Akhtar].

   IT IS FURTHER ORDERED THAT

   (10)By consent, the wife do all acts and things necessary and use her best endeavours to facilitate the husband being provided with his personal effects and possessions that are in the wife’s possession or control as at the date of these orders.

   (11)The proceedings, as to parenting, is adjourned for judicial case management to 2.15pm on Monday, 13 November 2017, noting that if the proceedings are resolved at mediation the parties, through the Independent Children’s Lawyer, are at liberty to forward a minute of proposed orders to the Court in chambers for the purpose of orders being made by consent and in that event the adjourned date will be vacated.

   THE COURT NOTES THAT

   (12)The Court is informed today that the parties are proceeding to mediation to be facilitated by the Independent Children’s Lawyer.

4. Subsequent to final property orders being made, final parenting orders were made by Hogan J on 16 July 2018.  Accordingly, as at 16 July 2018, there were no ongoing primary proceedings between the applicant and the wife.  The application filed by the husband on 3 September 2018 incorrectly by way of Application in a Case somewhat inelegantly seeks the following orders:

   (1)The applicant seeks leave out of time to appeal the property settlement of 17 August 2017.

   (2)The property settlement of 17 August 2017 should be set aside pursuant to section 79A(1A) and the discretion re-exercised.

   (3)The applicant declares reference to section 78 - his share and entitlement was unequal and contribution of the respondent was extremely minimal and unjust. 

   (4)Existing marriage contract and financial agreement (as an official marriage contact) preventing involvement of the Court according to section 71A of the Act. 

5. The primary import of the husband’s application is his wish to seek to set aside the orders made by consent on 17 August 2017 pursuant to the provisions of section 79A(1A) of the Act.  The actual grounds upon which he seeks to set them aside have not as yet been clearly elucidated.  However, circumstances are that as at 3 September 2018, there were no proceedings on foot between the parties in terms of a primary cause of action, property and parenting proceedings both having been resolved by final orders. 

6. Whilst it is appropriate having regard to the husband’s position that he did not consent to his withdrawal of his Application in a Case filed 3 September 2018 and in the context of the review application having now resiled from any suggestion of consent, he is entitled to have that application restored.  In terms of the section 79A application, it is appropriate that the following orders be made so that proceedings are brought in conformity with the Court Rules:

   (1)That the Application in a Case filed by the husband on 3 September 2018 be dismissed.

   (2)That the husband file an application initiating proceedings seeking orders pursuant to section 79A of the Act and specifying, with particularity, the provision of section 79A relied upon by him and setting out, with particularity in that application, details of the facts and circumstances relied upon by him in support of the orders sought in the application.

7. The other application before the Court is the husband’s application for enforcement of part of the property orders made on 17 August 2018.  The necessity to enforce those orders in circumstances where the husband now seeks to set the orders aside, is something of a mystery to the Court.  But in any event, the orders provide various provisions in relation to the transfer of the property at Suburb E to the wife, payment of a certain sum of money to the wife and in default, various orders for enforcement.

8. In orders made on 17 August 2017, it was ordered by consent that the wife do all acts and things necessary and use her best endeavours to facilitate the husband being provided with his personal effects and possessions that are in the wife’s possession or control as at the date of these orders.  The order, in itself, is somewhat imprecise, but bearing in mind that the husband seeks to set aside the property orders in any event, it is inappropriate to permit him now to seek to enforce those orders until his section 79A application is determined.

9. Accordingly, in the circumstances of this matter, the Application in a Case filed on 30 July 2018 as amended by the Amended Application in a Case filed 21 September 2018 is dismissed.

I certify that the preceding nine (9) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Foster delivered on 16 November 2018.

Associate: 

Date:  16 November 2018