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 2013APPEAL 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
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.
On 24 April 2019, the appellant filed an Amended Initiating Application which sought to set aside the consent orders pursuant to…
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- AGLC
- Appeal from: Akhtar & Gaber [2020] FamCA 298
- Case
- [2020] FamCA 298
- Decision Date
CaseChat Overview and Summary
The appeal raised questions as to whether a marriage agreement between the parties constituted a binding financial agreement under Part VIIIA of the *Family Law Act 1975* (Cth), and consequently, whether it ousted the Court's jurisdiction to make property settlement orders under s 79 of the Act. The appellant also contended that the primary judge erred in dismissing his application and that there was an apprehension of bias.
The Appeal Division found that the marriage agreement was not a financial agreement recognised by Part VIIIA of the Act, and therefore did not preclude the Court from exercising its jurisdiction under s 79. The Court concluded that the primary judge had made no error in dismissing the appellant's application under s 79A(1) and that there was no apprehension of bias.
Accordingly, the appeal was dismissed, and there was no order as to costs. The respondent's application for an extension of time to file a schedule of costs was also dismissed.
Orders
Orders of the court
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).
Background
Background to the litigation
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Evidence
Evidence Before The Court
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Decision
Reasons for decision
Ratio Decidendi
Legal Principle Established
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