Appeal from: Akhtar & Gaber
[2020] FamCA 298
•26 February 2021
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 s 79A(1) of the Family Law Act 1975 (Cth) (“the Act”). That application was heard on 13 February 2020 and dismissed on 30 April 2020. At the same time, the primary judge dismissed an application made by the appellant that his Honour recuse himself.
The appellant has appealed against both orders.
THE MARRIAGE AGREEMENT
The basis for the application to set aside the consent orders and one of the appellant’s grounds of appeal, was a marriage agreement entered into by the parties in Country B on 25 August 2003. The translation of that document was in evidence. It relevantly provides:
… The amount of … three million [local currency], marriage loan, was paid to [illegible word]. August 2003
…
Marriage portion & the parties’ signature: [Dowry including gold] to be paid by the husband upon the request.
…
… The wife stipulated as a condition that in case divorce is not at her request, and based on the court’s decision it is not due to the wife’s infringement of her duties as a spouse or her ill temper and misbehaviour, the husband, in accordance with the court’s decision, will be bound to gratuitously transfer to the wife up to half of the assets, or the equivalent of it, that he owns at the time and he has earned during the period he was married to her.
(Annexure “B” to the appellant’s affidavit filed on 16 September 2020) (As per the original)
There was no evidence before the primary judge which explained the meaning of a “marriage loan” and it is impossible to understand the legal effect of that clause.
The appellant contends that this agreement, either of its own force, or in conjunction with s 90C or s 90B of the Act, ousts the jurisdiction of the Court to make orders under s 79 of the Act or at the least, as a legally binding agreement, it overrides the operation of s 79 of the Act.
The appellant’s contentions are misconceived. The marriage agreement is self-evidently not a financial agreement recognised by Pt VIIIA of the Act because it does not fall within the definition of a financial agreement as defined by s 4, is not expressed to be such an agreement (s 90B(1) and s 90C(1)) and because it does not comply with the requirements of s 90G of the Act. It is therefore not enforceable under s 90KA and by virtue of s 71A does not oust the jurisdiction of the Court under s 79 of the Act. At best, the terms of the marriage agreement could be a matter to be taken into account in determining which orders are just and equitable (s 79(4)(e) and s 75(2)(o)), but given it’s age and the uncertainty as to its exact meaning, it may be given little weight.
Therefore, the marriage agreement, even if binding and effective in Country B, does not operate in Australia in the manner contended for by the appellant. Instead, the division of property between parties to a marriage, in the absence of a financial agreement, is governed by s 79 of the Act.
SHOULD THE PRIMARY JUDGE HAVE DISQUALIFIED HIMSELF?
At the hearing before the primary judge on 13 February 2020, the appellant asked the primary judge to recuse himself because he contended that it was apparent that his Honour would not bring an impartial mind to the resolution of his application due to previous comments made by the primary judge. The appellant identified the following comments made by the primary judge at a directions hearing on 16 May 2017:
[THE APPELLANT]: But the problem is something..... Your Honour. The problem is if I'm married to the [respondent], I wanted the marriage certificate to be presented. I have a financial agreement, and as long as the financial agreement exists, section 79 does not - comes into effect, gracious - - -
HIS HONOUR: Well, that's a matter for you to argue at trial … but, in any event, there's no binding financial agreement under our law.
[THE APPELLANT]: It is. Yes, of course it is, gracious Honour, and I can refer to the Act.
(Exhibit B, Transcript 16 May 2017, p.7 line 42 to p.8 line 5)
The test for determining whether a judge should disqualify himself or herself on the ground of apprehended bias is whether “a fair-minded lay observer might reasonably apprehend that the judge might not bring an impartial mind to the resolution of the question the judge is required to decide” (Ebner v Official Trustee in Bankruptcy (2000) 205 CLR 337 (“Ebner”) at [6]) (footnote omitted).
In Ebner, Gleeson CJ, McHugh, Gummow and Hayne JJ explained the operation of the principle as follows:
8.… Its application requires two steps. First, it requires the identification of what it is said might lead a judge (or juror) to decide a case other than on its legal and factual merits. The second step is no less important. There must be an articulation of the logical connection between the matter and the feared deviation of the course of deciding the case on its merits…
In the impugned comment, his Honour expressly left open for determination at the trial the effect of the marriage agreement on the operation of s 79 of the Act. The balance of the exchange consisted only of the primary judge pointing out to the appellant, who was then acting for himself, the obvious and unarguable fact that, whatever the marriage agreement may be, it is not a binding financial agreement as defined by the Act.
This statement does not give rise to an apprehension that the primary judge would not bring an impartial mind to the resolution of the proceedings. Judges are “not expected to wait until the end of a case before they start thinking about the issues, or to sit mute while evidence is advanced and arguments are presented” (Johnson v Johnson (2000) 201 CLR 488 at [13]).
In Antoun v The Queen (2006) 224 ALR 51 (“Antoun”), Kirby J said:
27.… For centuries in courts of our tradition, judges have been telling parties and their lawyers, sometimes in quite robust terms, that they consider that a particular submission or course of action is hopeless, a waste of the court's time or doomed to fail. I would not want to say anything that needlessly mollycoddled candid judicial speech addressed to trained advocates.
…
29.A line is drawn between forthright and robust indications of a trial judge's tentative views on a point of importance in a trial and an impermissible indication of prejudgment that has the effect of disqualifying the judge from further conduct of the proceedings. Sometimes, that line will be hard to discern…
(Footnote omitted)
In this case, we do not consider that his Honour crossed the line. The primary judge ventured no opinion as to the outcome of the appellant’s application but identified an unarguable fact for the benefit of the appellant. This matter can thus be distinguished from Antoun where the judge indicated from the outset that the application itself would fail.
In addition to the passage quoted above, before us, but not before the primary judge, the appellant complained about the following further exchanges from 16 May 2017:
HIS HONOUR: Thank you. All right. So you would be more than happy if I make an order that throws you out of that property; is that right?
[THE APPELLANT]: Yes.
HIS HONOUR: Okay. So when will you vacate the property?
[THE APPELLANT]: Vacating? Why?
HIS HONOUR: Yes. Well, you won’t let it get valued.
[THE APPELLANT]: The valuer should come and value it.
HIS HONOUR: Yes. Well, there’s five properties to be valued on your evidence.
[THE APPELLANT]: Yes.
…
HIS HONOUR: Okay. Well, it seems to me there’s three properties, one at Suburb F [and] two at Suburb G in respect of which you could make an application for some interim property sales and distribution. That might enliven [the appellant’s] interest.
…
HIS HONOUR: All right. Well, it sounds like somebody needs to develop a case theory on your side of the ledger, [counsel for the respondent], sooner rather than later.
(Exhibit B, Transcript 16 May 2017, p.5 line 36 to p.11 line 15)
It is necessary to place these comments in context. The parenting and property settlement proceedings between the parties had been on foot for four years and had still not progressed to a final hearing. It was clear that the appellant owned these five properties. The respondent lived in one of them. The appellant was reluctant to agree to the other four properties being valued. In the first comment above, the primary judge was warning the appellant about likely consequences at a final hearing if the properties had not been valued, namely, that the sale of property and division was a probable outcome. The appellant agreed to permit a valuer to attend the properties.
Whilst this is an example of robust case management, which was understandable in the circumstances, his Honour’s comments said nothing at all as to what any appropriate property division might be or whether such division would be affected by the marriage agreement. No basis has been identified for thinking that a fair-minded lay observer would apprehend any notion of prejudgment by the primary judge.
The last comment concerns the conduct of the respondent’s lawyers. On 16 May 2017, the respondent’s lawyers asserted that the appellant had owned another four properties which he had transferred to others, possibly his son. The difficulty was that no relevant property searches or investigations had been conducted and the possibility of joining the owners of those properties, whomever they might be, had not yet been considered.
We do not consider that the primary judge was giving advice to the respondent’s lawyers as to how her case might be run. At no time did his Honour do so. Rather, the primary judge was warning the respondent that the time for identifying her case in relation to the four properties that she asserted had been transferred to others was starting to run out and any opportunity to run that case, if it existed and whatever it may be, would be lost.
Again, we do not see how a fair-minded lay observer would apprehend from this that the final hearing would not be conducted impartially.
Finally, it was submitted that an apprehension of bias arose because “His Honour denied and contradicted the existence of a financial binding agreement under the Family Law Act” (the appellant’s Summary of Argument filed on 26 August 2020, p.10)
As we have explained, the phrase “binding financial agreement” has a precise technical definition under the Act which therefore cannot encompass the marriage agreement. No apprehension of bias as to the outcome of the s 79A application can arise from pointing out that fact.
No error has been identified in the primary judge’s refusal to disqualify himself.
DID THE PRIMARY JUDGE ERR IN DISMISSING THE S 79A APPLICATION?
His Honour’s reasons were:
35.The Annexure A to the [appellant]’s affidavit comprises meandering submissions going to the nature of the primary consent orders made in 2017. The [appellant] seems to contend that the consent orders that were made do not properly reflect contributions during the parties’ relationship with such contention being estopped by reason of the consent orders themselves being made at a time when both parties were legally represented.
36.Otherwise, the [appellant] again raises the issue of a Country B marriage agreement arising from the marriage of the parties in Country B in August 2003 that has been referred to above with submissions as to the efficacy of that agreement as between the parties. Such contention is ignore [sic] the reality that the Country B marriage agreement referred to does not oust the jurisdiction of this Court to deal with the property of the parties.
37.Otherwise, Annexure B to the [appellant]’s affidavit comprises the transcript of proceedings before this Court on 16 May 2017 when proceedings were before the Court for case management directions. The [appellant], during the course of that Court event, raised with the Court the issue of the Country B marriage agreement. The [appellant] was informed by the Court that “there is no binding financial agreement under our law”.
38.The [appellant] has the evidentiary obligation to adduce evidence to satisfy the Court that the provisions of s 79A(1)(a) are enlivened in that there has been a miscarriage of justice by reason of fraud, duress, suppression of evidence (including failure to disclose relevant information), the giving of false evidence or any other circumstance.
The appellant was legally represented by counsel when the consent orders were made. The primary judge was not then asked to decide the significance of the marriage agreement. Rather, both parties petitioned his Honour to make consent property settlement orders; the underlying premises of their joint application were that the judge was seized of jurisdiction to make the consent orders and it would be just and equitable to do so. Indeed, the appellant deposed in an affidavit filed on 16 September 2019 that the parties jointly satisfied the primary judge in August 2017 that the consent orders represented a “just and equitable settlement of their property” and that the agreement embodied in the consent orders “presented a proper distribution of the property” (Annexure “A” to the appellant’s affidavit filed on 16 September 2019). It must follow that, when the consent orders were made, any argument that the appellant still harboured about the ouster of jurisdiction was deliberately abandoned. If it had not been, counsel for the appellant would have pursued the point and withheld the appellant’s assent to the proposed consent orders but, once those orders were made, the appellant could not resile from his explicit or implicit concession about the existence of jurisdiction for them to be validly made.
At the hearing before the primary judge on 13 February 2020, the issue before the primary judge was whether the consent orders should be set aside pursuant to s 79A(1)(a) of the Act. By then, it was not open to the appellant to attack the effect of the consent orders outside the parameters of s 79A of the Act. They were the final orders of a superior court of record, made within its jurisdiction, from which there had been no appeal (Minister for Immigration and Multicultural and Indigenous Affairs v B (2004) 219 CLR 365 at 393).
The appellant sought to attack the consent orders pursuant to s 79A(1) of the Act. To succeed, he was required to demonstrate that the consent orders should be set aside due to a miscarriage of justice on grounds of fraud, duress, suppression of evidence, the giving of false evidence, or any other circumstance; not that the orders were invalid due to the absence of jurisdiction under Pt VIII of the Act to make them. In an obvious attempt to apply s 79A(1)(a) of the Act, the appellant pleaded in his Amended Initiating Application filed on 24 April 2019 that there had been a miscarriage of justice for four specific reasons: the “suppression of evidence”, “duress”, “unconscionable conduct” and “discrimination and prejudice”. However, no evidence was led by the appellant which could possibly bear out any of those pleadings.
Instead, the appellant’s evidence was directed to the asserted enforceability of the marriage agreement and the invalidity of the consent orders, since he additionally pleaded an alleged “error of law” in his Amended Initiating Application in these terms:
The decision on the Validity of the Binding Financial Agreement of the parties ought to have been made in the first instance…
The appellant presumably meant that the primary judge fell into appealable error by not determining whether the marriage agreement met the definition of a binding financial agreement under Pt VIIIA of the Act, so as to oust the jurisdiction under Pt VIII of the Act, before proceeding to make the consent orders in August 2017.
Evidently, that was an attack upon the approach taken by the primary judge when the consent orders were made in August 2017; not an attack upon those orders by the invocation of s 79A(1)(a) of the Act in a way which could sustain his pending application before the primary judge in 2020.
The appellant’s grounds of appeal and the submissions made in support of them merely replicate the submissions that he made to the primary judge about the alleged invalidity of the consent orders. The appeal fails because it does not address any error in the appealed orders made on 30 April 2020 dismissing his application under s 79A(1)(a) of the Act.
In his oral submissions at the appeal hearing, the appellant appeared to accept, at least at some stage, that the marriage agreement was not a financial agreement within the meaning of s 71A and that accordingly, the Court did have jurisdiction under s 79 of the Act. The appellant submitted, however, that the primary judge erred by denying him the right to present his evidence (the marriage agreement), which gave him no option but to agree to the consent orders.
The appellant was unable to point to any ruling or comment that indicated that the marriage agreement could not be tendered. That is not surprising because the matter was resolved before a final hearing was even listed. The primary judge’s comment that the marriage agreement was not a binding financial agreement, which was relied on by the appellant, patently is not a ruling that the document cannot be tendered.
The appellant submitted that the consent orders did not appropriately reflect the contributions made by the parties. That would be a difficult argument to make good in any appeal against the consent orders but it is an even more tenuous basis on which to suggest that those orders should be set aside on the grounds relied upon by him.
The remaining challenge to the consent orders is that the Court had no jurisdiction to take any step other than to enforce the marriage agreement. We have already set out our reasons why the marriage agreement did not have that effect.
The reasons of his Honour are entirely correct.
CONCLUSION AND COSTS
It follows that the appeal will be dismissed.
The respondent sought an order for costs in the event that the appeal was dismissed, although she had not complied with the orders made by the Appeal Registrar on 9 July 2020 to file and serve a schedule of costs seven days prior to the first day of the sittings in which the appeal is listed for hearing. We dismissed the respondent’s application for an extension of time to do so because no basis for such an extension was established.
I certify that the preceding thirty-nine (39) numbered paragraphs are a true copy of the Reasons for Judgment of the Honourable Justices Aldridge, Watts & Austin. Associate:
Dated: 26 February 2021
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