Bahar and Sohrab (No. 6)
[2017] FamCA 792
•5 October 2017
FAMILY COURT OF AUSTRALIA
| BAHAR & SOHRAB (NO. 6) | [2017] FamCA 792 |
FAMILY LAW – PRACTICE AND PROCEDURE
| Bretton & Bondai [2013] FamCAFC 168 Barker & Barker [2007] FamCA 13 Lindon v Commonwealth of Australia (No 2) (1996) 136 ALR 251 Gitane v Velacruz (2008) FLC ¶93-371 Gilpin v Gilpin (1969) 17 FLR 131 Williamson v Williamson (1974) 24 FLR 226 |
| Family Law Act 1975 (Cth) ss 79A, 106A Family Law Rules 2004 (Cth) r 10.12 |
| APPLICANT: | Ms Bahar |
| RESPONDENT: | Mr Sohrab |
| FILE NUMBER: | CAC | 1429 | of | 2014 |
| DATE DELIVERED: | 5 October 2017 |
| PLACE DELIVERED: | Canberra |
| PLACE HEARD: | Canberra |
| JUDGMENT OF: | Gill J |
| HEARING DATE: | 2 June 2017 |
REPRESENTATION
| COUNSEL FOR THE APPLICANT: | Mr Farrar |
| SOLICITOR FOR THE APPLICANT: | Farrar Gessini Dunn |
| SOLICITOR FOR THE RESPONDENT: | No appearance |
Orders
Noting that the Respondent’s applications of 22 November 2016 and 25 November 2016 (a reference to a minute of orders sought filed 28 November 2016), 6 March 2017, 12 April 2017, 26 April 2017 (filed on 27 April 2017) and 16 May 2017 (filed as a response to an amended application in a case filed 18 May 2017) have been consolidated by the Respondent into his minute of orders sought filed 30 May 2017 constituting 1-23 orders sought:
(a)Orders sought numbered 1, 3, 4, 5, 6, 7, 12, 14, 15(b), 15(c), 18, 19, 20, 21 and 22 are dismissed;
(b)Orders sought numbered 2 and 23 are dismissed insofar as they relate to orders sought numbered 1, 3, 4, 5, 6, 7, 12, 14, 15(b), 15(c), 18, 19, 20, 21 and 22 (being costs orders in relation to each of the applications); and
(c)Orders sought numbered 8, 9, 10, 11, 13, 15(a), 16 and 17 and orders sought numbered 2 and 23, insofar as they relate to orders sought numbered 8, 9, 10, 11, 13, 15(a), 16 and 17 are adjourned to the Registrar’s list to a date to be fixed, pending an application for the appointment of a case guardian or an application to establish that the Respondent is no longer a person under a disability.
The husband’s applications dated 6 March 2017, 12 April 2017, 27 April 2017 are dismissed.
The wife’s application in a case filed 18 April 2017 is dismissed.
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 Bahar & Sohrab (No. 6) 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 CANBERRA |
FILE NUMBER: CAC 1429/2014
| Ms Bahar |
Applicant
And
| Mr Sohrab |
Respondent
REASONS FOR JUDGMENT
This matter concerns a series of applications made by the husband since the final determination of the parties’ dispute by Watts J in his judgment of 1 February 2017. By orders dated 24 May 2017 the husband was required to post $50,000 security for the wife’s costs, or else his pending applications filed on or about 6 March 2017, 12 April 2017 and 27 April 2017(other than those aspects of the applications currently before Watts J) would be stayed, pending compliance. The security was not lodged. The wife now seeks the summary dismissal of these and the husband’s other applications.
On 18 May 2017 it was ordered that the husband file and serve:
A minute setting out each of the orders that he seeks from the Court in a consolidated form along with a document identifying what affidavits he intends to rely upon and what paragraphs of those affidavits he intends to rely upon.
On 30 May 2017 the husband filed an affidavit and minute of orders setting out the material he wished to rely upon and the orders he sought. By his minute of orders sought the husband seeks, amongst other things, to challenge the final property orders of Watts J, delivered on 1 February and 2 February 2017.[1]
[1] At p-43(45) of the transcript.
The husband has stated in his affidavit,[2] filed on 30 May 2017, that his minutes of orders sought, filed 30 May 2017, provides a consolidation of all orders now sought, drawn from applications filed 22 and 25 November 2016 (a reference to a minute of orders sought filed 28 November 2016) and 6 March, 12 April, 20 April (there is no application filed at this time), 26 April(filed on 27 April 2017) and 16 May 2017 (filed as a response to an amended application in a case filed 18 May 2017). He stated that he relied upon the affidavit filed 30 May 2017 and the supporting affidavits for each of the above applications.
[2] At [4] in the husband’s affidavit filed 30 May 2017.
Importantly the husband identified that he sought relief pursuant to s79A(1)(a) of the Family Law Act 1975 (Cth).
Despite filing material for the proceedings of 2 June 2017, the husband failed to attend and the proceedings continued in his absence.
The husband’s minute of orders seek some twenty-three different orders, comprising two final orders and twenty-one interim orders. It is necessary to consider by what jurisdiction the husband seeks the various forms of relief. Where the relief is in relation to matters already dealt with to finality by Watts J in the property proceedings, there is no remaining jurisdiction to deal with the matters other than by appeal, or by the operation of s79A. There has been no appeal lodged. To the extent that the remaining relief is reliant upon s79A as it deals with a matter finalised by Watts J, then those matters are reliant upon the success of the s79A application. Similarly, if the s79A application is summarily dismissed, then those applications that are reliant upon it will likewise fall to be summarily dismissed.
The first of the final orders is an application under s 79A(1)(a) of the Family Law Act, to set aside the property Orders of 1 February 2017, and to make new orders providing each of the parties with 50 per cent of the property pool as at the date of the final hearing on 6 December 2016, with the parties to retain their own respective superannuation interests unaltered. This order is explicitly sought under s 79A(1)(a), the grant of which requires the court to be satisfied that there has been a miscarriage of justice by reason of fraud, duress, suppression of evidence, the giving of false evidence or any other circumstance.[3]
[3]Family Law Act 1975 (Cth) s 79A(1)(a).
The second of the final orders sought is an application for the wife to pay the husband’s costs of and incidental to all applications referred to in his affidavits filed 26 April and 16 May 2017, and his costs as mentioned under orders 4, 5 and 6 of the minutes of orders sought filed by the husband on 25 November 2016. These refer to the matters that are now consolidated by the husband’s minute of orders, and must be taken to be costs in respect of the consolidated matters.
Order three seeks a Mareva injunction, restraining the wife from dealing with any property, anywhere in the world. Given the finalisation of the parties’ property proceedings before Watts J, this application must be contingent upon the s79A application as, without it, there could be no jurisdiction to entertain re-litigation of the matters that have been finalised.
Order four seeks a stay of the final orders made by Watts J on 1 February 2017. Orders three and four are dependent upon the operation of order one,[4] as they are sought pending the resolution of order one. That is, if order one is struck out, then orders three and four must necessarily fail.
[4] At p-38(4) of the transcript of 2 June 2017.
Order five seeks a stay of orders made by me on 24 May 2017 that require the husband to provide security for costs incurred by the wife. No appeal has been lodged. Absent an appeal, there is no basis to stay these orders.[5] This application lacks any jurisdictional basis.
[5] At p-39(5) of the transcript.
Order six seeks that all outstanding matters be consolidated before the Family Court of Australia, to be heard by Justice Gill. This stands as contrary to orders made 24 May 2017, directing that the costs applications and disqualification applications be heard before Watts J.[6] There was no appeal from these orders. No basis was disclosed to support the making of such an order. There is no apparent jurisdiction to make the orders sought where orders have already been made.
[6] At p-39(20) of the transcript.
Order seven seeks a stay of the proceedings set down for 2 June 2017, and any subsequently scheduled hearings, until a time at which the husband is mentally fit and able to participate in proceedings.[7] It is not dependent upon the husband’s s79A application, at least to the extent that it deals with proceedings outside the scope of the s79A application. However, by ruling of 18 May 2017 it was determined that the proceedings would continue despite the husband’s application based upon his health. These orders were not appealed. Absent the lodging of an appeal no basis for a stay was available. Proceedings went ahead on 2 June 2017.
[7] At p-39(35) of the transcript.
Order eight seeks a stay of the wife’s application for the husband to be dealt with for contempt of court, pending the determination of the husband’s application to ACT Legal Aid for a grant of aid.[8] This is not reliant upon the husband’s s79A application.
[8] At p-40(5) of the transcript.
Order nine requests that that the wife provides an updated financial statement.
Order ten requests that the wife provide a $100,000 security for costs incurred by the husband in responding to the wife’s applications. To the extent that these deal with subject matter outside the husband’s s79A application, for example costs for the contempt application, they are not reliant on the s79A application.
Order eleven is a request that no order be made restraining the husband from instituting proceedings against the wife under the Family Law Act.[9] At best this could be seen as responsive to an application by the wife the restrain the husband in respect of future proceedings and is not reliant on the s79A application.
[9] At p-40(40) of the transcript.
Order twelve seeks that there be no order requiring the husband to pay security for the wife’s costs. There are operative orders requiring that the husband lodge security for costs. He has not done so. There is no appeal from the order imposing the security requirement. No jurisdiction arises for dealing with this application.
Order thirteen seeks that no order be made that requires the husband to provide security for the wife’s costs, by way of transferring jointly-owned Commonwealth Bank of Australia shares to the wife.[10] This appears to be a response to orders sought by the wife and has existence independent from the s79A application.
[10] At p-41(10) of the transcript.
Order fourteen seeks that the wife transfer her interest in the jointly-owned shares, identified above, to the husband within seven days.[11] It is unclear what jurisdiction is relied upon for the making of this order. Presumably it is an order for the adjustment of property interests after the resolution of the s79 proceedings. There is no remaining power to do this, and so the application could only be entertained if sustained by the s79A application.
[11] At p-41(20) of the transcript.
Order fifteen operates in conjunction with orders nine, ten and fourteen, and purports to set out a series of ramifications should orders nine, ten and fourteen be granted, and should the wife fail to comply with them.[12] Should the wife fail to comply with the orders, the husband seeks that all her pending applications be stayed, that the Registrar transfer the shares identified above to the husband under s 106A, and that the husband be permitted to sell the shares to pay legal and housing costs. Orders 15(b) and (c), which seek orders related to the jointly owned shares, are wholly reliant upon the success of the s79A application
[12] At p-41(25) of the transcript.
Order sixteen seeks that the wife be restrained from leaving Australia, and that she surrender her passport. This order appears to hinge in large part upon the s79A application as requiring her presence for its effectiveness. However, if there are other applications remaining on foot on the part of the husband, there may be a further basis for restraining the wife.
Order seventeen is a request for leave to file further materials in support of the husband’s adjournment application, which itself was sought by order seven.[13] This is unrelated to the s79A application.
[13] At p-41(45) of the transcript.
Order eighteen seeks a written undertaking from the wife that she will not commence nor re-commence any proceedings, except in Australia, in relation to either the husband or the parties’ two children, T and Ms S.[14] Given the finalisation of the parties’ proceedings by Watts J, this application relies upon the s79A application for a jurisdictional basis to make the orders.
[14] At p-42(5) of the transcript.
Order nineteen is contingent upon order eighteen, and likewise contingent upon the s79A application, and requires the wife to register the aforementioned undertaking with the Tehran family court and the Iranian Embassy in Canberra, and provide a copy to the husband.[15]
[15] At p-42(15) of the transcript.
Order twenty seeks the sale of two properties, one in Suburb R, the other in Suburb Q, the proceeds of which are to be used to meet the legal and other costs of the husband. These properties belong to the wife.[16] There is no jurisdiction to alter the wife’s property interests to compel the wife the sell her property to provide proceeds to the husband given the completion of the s79 proceedings. This is an application that could have no basis other than on a successful s79A application.
[16] At p-42(35) of the transcript.
Order twenty-one requests that a free copy of the court transcript for the final hearing conducted in 2016 be provided to the husband. Absent there being any appeal in relation to the 2016 proceedings, there is no basis upon which such a transcript would be provided.[17] If some justification could be mounted on the basis of the s79A application, then dismissal of this order will turn on the s79A application.
[17] At p-43(10) of the transcript.
Order twenty-two asks the court to pay special attention to the applications and affidavits provided by the husband since 22 November 2016.[18] This is not an application.
[18] At p-43(25) of the transcript.
Order twenty-three is identical in form to order two.[19] It seeks costs in relation to the applications now covered by this consolidated list of orders sought.
[19] At p-43(35) of the transcript.
The principles governing a s79A(1)(a) application
By his minute of orders sought, the husband has specifically identified s79A(1)(a) as the basis for his application. This section provides the court with the power to set aside or vary an order made under s 79, where the court is satisfied that:
(a) 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.
Barker & Barker[20] dealt with the meaning of the term “miscarriage of justice”:
A miscarriage of justice under s 79A(1)(a) will occur if circumstances exist which “for some significant reason, make the order contrary to law and justice according to law as it relates to the integrity of the judicial process [original emphasis]” (Bigg v Suzi (supra) at 84,982). See also Suiker (supra); Public Trustee (as executor of the estate of Gilbert) v Gilbert (supra)). Whilst cases such as Suiker (supra), Holland v Holland (1982) FLC ¶91-243 and Gebert v Gebert (1990) FLC ¶92-137 indicate that the words “miscarriage of justice” should not be construed narrowly and the phrase “integrity of the judicial process” should not be taken only to refer to the hearing in the court, the circumstances creating the miscarriage must nevertheless have been such as to have had an influence on the outcome of the litigation.
[20] [2007] FamCA 13 at [120].
The Full Court also identified that:
for a claim under s 79A(1) to succeed, the Court must be satisfied that a miscarriage of justice has resulted. It is not sufficient to merely establish the existence of one or more of the stated grounds, such as suppression of evidence.
In determining whether there has been a miscarriage of justice, it must be noted that the concept of a miscarriage of justice does not equate with a wrong decision, or a different result as to what should have been.[21] It is the presence of circumstances that undermined the hearing in a manner that significantly made the result contrary to law and justice.
[21] Gilpin v Gilpin (1969) 17 FLR 131, 134–5; Williamson v Williamson (1974) 24 FLR 226, 228.
Again in Barker, it was identified that the enquiry as to the circumstances leading to the miscarriage of justice is an enquiry as to the circumstances at the time of the making of the orders. The question is directed toward “whether or not the process was in some way impugned.”[22] There the question was whether conduct by the wife after the making of the orders was germane to the question of whether a miscarriage of justice had occurred at the point of the making of the orders. The Full Court determined that it was not.[23]
[22] [2007] FamCA 13 at [132].
[23] [2007] FamCA 13 at [133].
The question is then as to what the husband identifies as the circumstances and the result that represents the miscarriage of justice.
The husband’s evidence in support of his s79A(1)(a) application
In his affidavit filed 30 May 2017 the husband, at [4] and [7], identified that he relied upon all of his applications and affidavits filed in relation to the applications filed 22 and 25 November 2016 (there is no application filed on 25 November 2016, although there is a minute orders sought filed 28 November 2016)), 6 March, 12 April, 20 April (there is no application in a case filed by the husband at this time), 26 April and 16 May 2017. The applications cannot be construed as evidence on which the husband relied. The evidence must be sourced from the affidavits. At [8] he broadly asserts that the affidavits “substantiate my allegations of fraud, duress, suppression of evidence (including failure to disclose relevant information), the giving of false evidence and other circumstances.”
Objection was taken to a number of passages within these affidavits, and in consequence a portion of the affidavits were not admitted into evidence.
The affidavit of 22 November 2016 predates the completion of the final hearing. It contains no matter directed to a circumstance causing a miscarriage of justice in the final hearing.
The affidavit of 22 February 2017 complains about the implementation of, and compliance with, the orders by the wife. It identifies no circumstance that caused a miscarriage of justice in the final hearing.
The affidavit of 12 April 2017 complains about the effect of the final order upon him. He seeks that Watts J remove himself from further hearing on the basis that he believes that Watts J was not impartial. He provides no evidence as to why this might be considered to be so. He identified poor health at the time of the hearing, which was a matter dealt with at the hearing by Watts J at [31] and [32]. Section 79A does not form a basis by which a collateral attack may be mounted on determinations by a trial judge as to the conduct of the trial.
The affidavit of 27 April 2017 relates to costs since the final hearing and appearances in court since the final hearing. At paragraph 22 the husband asserts a miscarriage of justice as outlined in the previous affidavit. One limb is the complaint that he was placed under duress by the wife. No evidence is produced to support this assertion, nor to what the duress bore upon. He further complained about the court refusing to allow him access to certain funds to pay for his legal representation. He raises his identification to Watts J that he was a self-represented litigant. He complains that he was hampered by illness impacting his capacity during the trial. These were matters dealt with by the trial judge. Again, these last complaints are at best a collateral attack upon the trial judge’s running of the case. Section 79A does not confer a jurisdiction upon this court at first instance to review the determinations of another trial judge.
The husband at [41] says that he will in due course present evidence showing that the wife’s lawyers “withheld crucial information at the final hearing.” He has not done so. There is no evidence to show a with-holding of information.
He further complains regarding Watts J’s impartiality. In support of that he Annexes at L correspondence from him directed to the associate of Watts J. The matters contained there do not constitute circumstances causing a miscarriage of justice.
The affidavit of 16 May 2017 repeats the matters raised in the 27 April 2017 affidavit regarding the husband’s difficulties at trial being self-represented and unwell. He emphasises that these matters were raised with Watts J during the trial.
The affidavit of 30 May 2017 refers to the final proceedings only so far as to disagree with factual findings made by Watts J, and to complain that he was denied access to his funds to pay for legal representation. There is no identification of how either of these constituted a circumstance leading to a miscarriage of justice.
The obligation on the husband in pursuing an application pursuant to s79A(1)(a) is to show circumstances leading to a miscarriage of justice. Absent such circumstances the claim must fail.
The principles governing summary dismissal
In Lindon v Commonwealth of Australia (No 2),[24] Kirby J set out that the guiding principle of Rules that deal with summary dismissal is “doing what is just.” Given that depriving a person of access to courts by means of summary disposal is a serious matter, the following approach is warranted:
a)The party seeking the relief must show that it is clear, on the face of the opponent's documents, that the opponent lacks a reasonable cause of action or is advancing a claim that is vexatious.[25]
b)The opinion of the court that a case appears weak and such that it is unlikely to succeed is not, alone, sufficient to warrant summary termination.[26]
c)If, notwithstanding the defects of pleadings, it appears that a party may have a reasonable cause of action which it has failed to put in proper form, a court will ordinarily allow that party to reframe its pleading.[27]
d)If it is clear that proceedings within the concept of the pleading under scrutiny are doomed to fail, the court should dismiss the action to protect the defendant from being further troubled, to save the plaintiff from further costs and disappointment and to relieve the court of the burden of further wasted time which could be devoted to the determination of claims which have legal merit.[28]
[24] (1996) 136 ALR 251.
[25] (1996) 136 ALR 251, 2.
[26] (1996) 136 ALR 251, 4.
[27] (1996) 136 ALR 251, 5.
[28] (1996) 136 ALR 251, 6.
However, Rule 10.12 of the Family Law Rules 2004 (Cth), which deals with applications for Summary Orders, has a broader operation with respect to dismissal on the basis of the prospects of the case:
A party may apply for summary orders after a response has been filed if the party claims, in relation to the application or response, that:
(a) the court has no jurisdiction;
(b) the other party has no legal capacity to apply for the orders sought;
(c) it is frivolous, vexatious or an abuse of process; or
(d) there is no reasonable likelihood of success.
Relief is available in cases where there is no reasonable likelihood of success, as stated in by Finn and Strickland JJ in Bretton & Bondai:[29]
Assuming, that a summary dismissal application was available to the mother in this case, the appropriate test would have been “no reasonable likelihood of success”. It must be acknowledged that his Honour did not, at least expressly, apply this test. Rather, he apparently applied the “doomed to fail” test referred to by Kirby J in Lindon. The tests are, of course, conceptually different.
[29][2013] FamCAFC 16.
That is, the Rules expand the availability of summary dismissal beyond what was set out in Lindon.
Conclusion
In this case both lack of jurisdiction and lack of reasonable likelihood of success are applicable grounds for resolving the summary dismissal question.
Given the previous assessment of the nature of the orders sought, and the content of the evidence presented, the orders 5, 6, 12 and 22 sought fall to be summarily dismissed for lack of jurisdiction. .
Order 8 relates to the contempt proceedings commenced by the wife. They seek relief in relation to the manner of conduct of the contempt proceedings, being an adjournment pending a legal aid application. Order 17 seeks to be allowed to file further material in support of this application. Since this matter was argued before me, Watts J determined on 27 September 2017, that the husband has become a person with a disability and hence requiring a case guardian for the conduct to his litigation pursuant to Part 6.3 of the Family Law Rules 2004. To the extent that they relate to proceedings that remain on foot after the determination of the hearing of 2 June 2017 they do not lack jurisdiction and cannot be dismissed for lack of reasonable likelihood of success.
Orders 1, 2 and 23 (being costs orders in relation to each of the applications) insofar as it relates to the applications referred to in this paragraph, 3, 4, 14, 15(b) and (c), 18, 19, 20, 21 are all reliant on the husband’s s79A(1)(a) application. An examination of the evidence provided by the husband identifies neither circumstances that lead to a miscarriage of justice, nor a miscarriage of justice. The capacity of the evidence to do this is a fundamental requirement to any prospect of success. Accordingly, each of these applications has no reasonable prospects of success and will be dismissed.
Order 7 seeks a stay pending the husband being fit to conduct the proceedings. This matter was disposed of on 18 May 2017.
The balance of the orders sought, being orders 2 and 23, insofar as they relate to costs other than in relation to the matters in the above paragraph, and orders sought 8, 9, 10, 11, 13, 15(a), 16 and 17 do not rely upon the s79A(1)(a) application and cannot be said to have no reasonable prospects of success in order to justify summary dismissal.
A consequence of these determinations is that, of the applications of 6 March 2017, 12 April 2017 and 27 April 2017 which are currently stayed pending payment of security for costs, none remain on foot.
The balance of the applications made by the husband are now to be seen in the context of Watts J’s findings that the husband is a person under a disability. Accordingly, pursuant to Part 6.3 of the Family Law Rules 2004, the husband is unable, at present, to continue those proceedings. This will remain the case until he is no longer a person under a disability or a case guardian is appointed.
It should also be noted that the wife no longer seeks the orders sought in her application in a case filed 18 April 2017.
I certify that the preceding sixty (60) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Gill delivered on 5 October 2017.
Associate:
Date: 5 October 2017
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