Bahar and Sohrab

[2015] FamCA 1198

FAMILY COURT OF AUSTRALIA

BAHAR & SOHRAB [2015] FamCA 1198

FAMILY LAW – PROCESS AND PROCEDURE

APPLICANT: Ms Bahar

RESPONDENT: Mr Sohrab

FILE NUMBER: CAC 1429 of 2014

DATE DELIVERED: 22 December 2015

PLACE DELIVERED: Sydney

PLACE HEARD: Sydney

JUDGMENT OF: Watts J

HEARING DATE: 22 December 2015

REPRESENTATION

SOLICITOR FOR THE APPLICANT: Farrar Gesini Dunn

COUNSEL FOR THE RESPONDENT: Ms Haughton

SOLICITOR FOR THE RESPONDENT: Yeend & Associates

Orders

1. I note the wife has indicated that she is prepared to consent to an order, pending further order, that she be restrained from continuing any claim against the husband in Iran.

2. Pending further order, the wife be restrained from continuing proceedings in the Family Court of the Islamic Republic of Iran for any orders including orders relating to financial matters against the husband including:

   2.1.Any claim against the husband for compensation for marriage duration plus court fees and compensation for delay in remittance;

   2.2.For alimony;

   2.3.For the obtaining of an expert’s view according to articles 1087 and 1091 of the Iranian Civil Law;

   2.4.For mandatory payments according to articles 1106 and 1107 of Iranian Civil Law.

3. Both parties do all things and sign all necessary documents to provide to the Iranian Court a copy of these orders and to sign any document prepared by the wife’s lawyer in Iran that is required to postpone or put over generally any return date or gazetted date for any hearing in Iran pending the further order of this court.

4. I dismiss the husband’s application to vacate the hearing that has been scheduled to commence in Canberra on 8 February 2016.

5. I dismiss all other applications for interim orders by the husband and I adjourn the wife’s application in a case to be consolidated with the final hearing.

6. The lawyers for the parties confer and so far as is possible, prepare a joint balance sheet and in the alternative if they cannot agree, two balance sheets, which are to be emailed to my associate by 4pm 3 February 2016.

7. I note that the husband relies upon the following affidavits:

   7.1.Husband’s affidavit filed 21 September 2015

   7.2.Financial Statement filed 21 September 2015

   7.3.Husband’s affidavit filed 17 September 2015 re failure of the wife to make full disclosure

   7.4.Affidavit of Ms B filed 18 September 2015

   7.5.Affidavit of Dr C filed 17 September 2015 (back and psychological issues)

8. Any updating affidavit from Ms B is to be filed and served by 22 January 2016.

9. Any updating affidavit by the husband is to be filed and served by 22 January 2016.

10. Any affidavit from any witness in Iran who has made inquiries on behalf of the husband needs to be served by 22 January 2016. Whether or not the husband is allowed to rely on that evidence will be a matter for consideration on the first day of the hearing.

11. I note that the wife relies upon the following affidavits:

    11.1.Affidavit of the parties’ adult daughter Ms S filed 17 March 2015

    11.2.Affidavit of Dr D filed 19 March 2015 (psychological issues in presence of husband)

    11.3.Affidavit of Ms E filed 23 June 2015 (clinical psychologist)

    11.4.Affidavit of Mr F filed 9 June 2015 interpreting some Iranian documents

    11.5.Affidavits of Mr G filed 24 and 26 June 2014 valuing the husband’s PSS Superannuation Entitlements

    11.6.Affidavit of Ms H filed 26 June 2015 (friend of the wife)

    11.7.Affidavit of Mr O filed 29 June 2015 (wife’s brother)

    11.8.Affidavit of Mr J filed 29 June 2015 (friend of the wife’s)

    11.9.Affidavit of Mr K filed 29 June 2015 (wife’s brother)

    11.10.Affidavit of Mr L filed 30 June 2015

    11.11.Affidavit of Mr M filed 10 June 2015

    11.12.Affidavit of Dr N filed 17 March 2015

12. Any updating affidavit by Dr N is to be filed and served by 22 January 2016.

13. I note that the wife has made an oral application for Mr O and Mr K to give evidence by electronic means. That application is granted at this stage on the basis that the lawyers for the wife are able to make all necessary arrangements for the evidence to be given by video link. In the event that that is not possible, I will deal with any application for those witnesses to give evidence by telephone on the first morning of the hearing.

14. The parties also rely upon the following affidavits from the single experts:

    14.1.Affidavit of Mr P filed 2 July 2015 (Valuation of Suburb Q property)

    14.2.Affidavit of Alan Underwood (valuation of Suburb R property)

15. The parties are to instruct the single experts to update their valuations which are to be filed and served by 22 January 2016.

16. If there are any objections to any parts of affidavits relied upon by either party, the lawyers for the parties are to have provided their objections to the other party by 29 January 2016 and then to have conferred by 3 February and provide by 4 February a written document electronically to my associate setting out what parts of the affidavits which are no longer read and if there are objections to parts of the affidavits, the basis of the objections.

17. Case outlines to be filed and served by 4 February 2016.

18. If either party wants to put on any affidavit being evidence from a lawyer from Iran in relation to the current Iran proceedings, that affidavit is to be filed and served by 22 January 2016.

19. By 3 February 2016 counsel for the parties are to have conferred and to have prepared a draft trial plan based upon five days of hearing time. I note I have 9.15 listings on Wednesday and Thursday, so this case cannot start before 10 on Wednesday and Thursday but otherwise I am prepared to start early; sit late if the trial plan requires it.

20. I reserve both parties’ costs for today.

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

FAMILY COURT OF AUSTRALIA AT SYDNEY

FILE NUMBER: CAC 1429  of 2014

Ms Bahar

Applicant

And

Mr Sohrab

Respondent

EX TEMPORE REASONS FOR JUDGMENT

1. In this matter the husband by way of an Application in a Case filed 16 December 2015 has made an application the final hearing dates in the matter that have been scheduled to commence on 8 February 2016, be vacated.

2. The wife has consented to the order contained in paragraph 2 of the orders.

3. In relation to the orders made at paragraphs 3 and 4 of the orders, I take into account the history of these proceedings and the parties’ current financial circumstances as I understand them.

4. This matter had been set down for a final hearing in July 2015. On 2 July 2015 the husband then brought an application to vacate the hearing dates because of his alleged ill health. Whilst the Deputy Chief Justice did not go so far as to find that the husband’s alleged difficulties at that time were a forensic tactic, he was sufficiently unconvinced to conclude that it was appropriate for a costs order to be made of a sum of $66,860 for costs thrown away because of the husband’s non-involvement in the hearing at that time (as set out, particularly at [24] and following of his Reasons).

5. The parties have spent a considerable amount of money on both sides and have produced a volume of paper in preparation for the hearing. Both parties continue to assert that the other has not made a full and frank disclosure. I intend to commence the hearing with the view of being able to complete it commencing on the due date, namely 8 February 2016. The orders that I have made will effectively stop the wife from continuing the current proceedings in Iran, clearing the way for the hearing here to proceed.

6. The primary submission by counsel for the husband was that the court would not be able to determine the matter in Australia because the court would not be able to make findings about what money impost might be placed upon the husband as a result of the Iranian proceedings. That matter can to some degree be resolved by both parties having an opportunity to file affidavits from lawyers in Iran expressing views about that topic. It may well be I can make a finding about that. The bigger question of course relates to the assertion by the husband that the wife has been involved in substantial material non-disclosure of assets that she has overseas, particularly in Iran. I accept the submission by the lawyer for the wife that the husband has had a long time now to get material together about that and to present it to the court. It is not uncommon for this court at a final hearing to have such allegations made and to make determinations one way or the other about allegations of substantial non-financial disclosure. It is not a reason to vacate the hearing dates.

7. Accordingly, I make an order in the terms of paragraph 3 of the orders over the objection of the husband and I dismiss the husband’s application to vacate the hearing that has been scheduled to commence in Canberra on 8 February 2016.

8. In relation to the orders sought in paragraph 4 of the husband’s Application in a Case filed 6 December 2015 (seeking the wife sign authorities for him to make inquiries about the wife in Iran), I am not prepared to make those orders at this point for two reasons. The first and most significant reason is that there is no indication as to why this application has been brought so late and it is primarily the lateness that is the reason why I dismiss this application. Secondly, it is an application in very wide and general terms and I am not prepared to make an order in those wide and general terms not knowing what the ramifications might be as to how that type of authority from the wife might be used in the husband’s hands, in circumstances where the wife makes allegations against the husband of forgery and deception. The husband has not been prevented from bringing whatever evidence he wants to bring to establish there has been a lack of full and frank disclosure. It is not necessarily up to him to attempt to disclose for the wife what she has in Iran. It may be sufficient for him to demonstrate to the court that the wife has not done that.

9. In relation to the other applications by the wife before me today, I am not prepared to make any further interim orders and I adjourn those applications to be consolidated with the final hearing.

I certify that the preceding nine (9) paragraphs are a true copy of the ex tempore reasons for judgment of the Honourable Justice Watts delivered on 22 December 2015.

Associate: 

Date:  23.12.2015