JAFARI and RASHIMI AMID

[2024] FCWA 266

JURISDICTION : FAMILY COURT OF WESTERN AUSTRALIA

ACT: FAMILY COURT ACT 1997

LOCATION: PERTH

CITATION: JAFARI and RASHIMI AMID [2024] FCWA 266

CORAM: O'BRIEN J

HEARD: [IN] NOVEMBER 2024

DELIVERED : Ex tempore

FILE NO/S: 10432 of 2022

BETWEEN: MS JAFARI

Applicant

AND

MR RASHIMI AMID

Respondent

Catchwords:

PROPERTY & ANTI-SUIT INJUNCTIONS - Where the parties obtained consent orders for alteration of property interests - Where the documents filed in these proceedings did not refer to a "mahr" or "marriage portion" payable to the mother under Islamic law pursuant to a temporary marriage contract - Where the mother has commenced proceedings in Country A to enforce payment of the mahr - Where the mother has applied to vary or set aside the consent orders so as to effectively recover the mahr under orders proposed to be made in this court - Where the father seeks summary dismissal and a permanent anti-suit injunction - Where there is no admissable evidence in relation to relevant Islamic law - Where the competing applications cannot be determined on the papers in any event

Legislation:

Family Court Act 1997 (WA)
Family Court Rules 2021 (WA)
Family Law Act 1975 (Cth)

Category: Not Reportable

Representation:

Counsel:

Applicant	:	Self Represented Litigant
Respondent	:	Dr Ingleby

Solicitors:

Applicant	:	Self Represented Litigant
Respondent	:	Beacon Family Law

Case(s) referred to in decision(s):

Mohamed v Mohamed and Anor [2012] NSWSC 852

WORDS IN SQUARE BRACKETS REPLACE WORDS USED IN THE ORIGINAL JUDGMENT - PARTIES' NAMES AND IDENTIFYING DETAILS HAVE BEEN CHANGED

IT IS NOTED that publication of this judgment by this Court under the pseudonym Jafari and Rashimi Amid has been approved by the Family Court of Western Australia pursuant to s 243(8)(g) of the Family Court Act 1997 (WA).

This copy of the Court's Reason for judgment may be subject to review to remedy minor typographical or grammatical errors (r 312(b) Family Court Rules 2021 (WA)), or to record a variation to the orders pursuant to r 311 Family Court Rules 2021 (WA).

Part XIVB of the Family Law Act 1975 (Cth) makes it an offence, except in very limited circumstances, to publish an account of proceedings that identify persons, associated persons, or witnesses involved in family law proceedings.

1[Ms Jafari] ("the mother") commenced proceedings in this Court [in] 2022, seeking parenting orders in relation to [Roshan] born [in] 2021, the only child of her relationship [Mr Rashimi Amid] ("the father"). In the course of those proceedings, financial issues were raised and the parties each sought orders for alteration of property interests.[1]

The initial financial proceedings

[1] By the father’s amended response filed on 19 June 2023, and the mother’s reply filed on 31 July 2023.

2The parties attended a conciliation conference [in] September 2023, and reached agreement in relation to the financial case. Orders were made by consent by a Registrar ("the consent orders"). The orders declared the intention of the parties that in accordance with s 205ZJ of the Family Court Act 1997 (WA) ("the Act") they would, as far as practicable, determine finally the financial relationship between the parties. The father was ordered to pay the mother the sum of $50,000 within 28 days. Orders were also made providing that the mother's interest in "any other property held in the [father's] name or possession vests in [the father] absolutely", with a mirror order vesting the father's interest in property in the mother's name or possession in her. A further order was made requiring each party to "pay and indemnify" the other in relation to any liabilities in their name or which related to any property they were to retain. The financial proceedings were otherwise concluded by the dismissal of all relevant applications and responses.

3The father transferred to his lawyers the amount required to be paid to the mother pursuant to the orders, and the lawyers hold those monies on trust.

Subsequent developments

4Issues then arose, as the mother sought to enforce in the [Country A's] courts the payment of a mahr pursuant to a marriage contract. The father filed an amended substantive response on 25 January 2024 seeking an injunction restraining the mother from "continuing or commencing proceedings in Country A in relation to the dowry".[2] Further or in the alternative he sought "pursuant to s 79A to the extent the dowry has been paid to [the mother] pay the sum equivalent of the dowry to [him]".[3] By that he referred to s 79A of the Family Law Act 1975 (Cth), which would be the relevant legislation if the parties are married, as distinct from the Family Court Act 1997 (WA) which is the relevant legislation if they are not.

[2] At 10, [1].

[3] At 10, [2].

5The mother filed an amended substantive application on 27 March 2024, seeking final orders that the consent orders be set aside and that the financial proceedings be "reopened pursuant to s 205ZH(2) of the Family Court Act1997 (WA)".[4] She sought an order that the sum of $50,000 then held on trust by the father's lawyers and due to her pursuant to the consent orders be paid to her immediately and "categorised as partial property settlement", and that the father pay her "the greater of 50 ounces of pure gold or the equivalent amount in cash".[5] She reserved the right to further particularise the orders she sought. She proposed, on the basis of the orders just noted being made, that she be restrained by injunction from commencing proceedings with respect to the mahr in any other jurisdiction. By a Minute of Proposed Orders filed on 7 November 2024 she purports to seek the same orders on an interlocutory basis.

[4] At 12, [2].

[5] At 12, [3]-[4].

6The father filed a third amended substantive response on 11 November 2024. By a minute filed on 19 August 2024 he had foreshadowed an application for summary dismissal of the mother's substantive application. He still proposes the anti-suit injunction already mentioned but seeks additional orders. Either in furtherance of the injunction, or by way of variation of the consent orders, he seeks that the mother execute a waiver of entitlement to the mahr, and/or a written acknowledgement that she has received the relevant sum in full and final satisfaction of all claims pursuant to the mahr, or in the alternative to the extent the mahr has already been paid to the mother, she repay the equivalent sum to him. That self-evidently confused raft of proposed relief is not explained by any accompanying affidavit. It is sought to be explained in written submissions filed on the same day, to which I will return.

7The father also seeks an order that the mother pay his costs on an indemnity basis.

8On a separate matter, on 8 November 2024 the mother filed an application in a case seeking to extend the duration of an injunction and watch list order previously granted preventing the father from removing Roshan from the country. The existing watch list order will expire on 22 December 2024. The father has not had the opportunity to respond to that application; at the hearing, his counsel confirmed that the proposed extension is not opposed in the short term. I will make the relevant orders at the conclusion of the hearing, and do not propose to address them further in these reasons.

9The mother also seeks "full access to be provided to her for Roshan's daycare and the daycare app"[6] and an injunction restraining travel outside Western Australia. The father has not had proper opportunity to respond on those matters, so I do not propose to deal with them today.

A preliminary matter

[6] Mother's Form 2 Application filed 8 November 2024, at Part D [7].

10As is apparent from what is set out above, it appears that there may be a dispute between the parties as to whether or not they are married. The proceedings to date (including the making of the consent orders) have been conducted on the basis that the parties are not married. The mother has contended at a previous hearing before me and again today that they are, and in earlier documents the father made specific reference to sections of the Family Law Act 1975 (Cth), while subsequently making reference to the Family Court Act 1997 (WA).

11On the mother's evidence, which does not appear to be contested, the parties entered into a marriage contract, and participated in a marriage ceremony, [in] September 2020. The certificate annexed to her affidavit filed on 27 March 2024 records that the "type of marriage" was a "temporary marriage for duration of two years", with a further notation that if the parties decided to "marry each other on a permanent basis prior to [the] expiry of the temporary marriage, [the father] shall relinquish temporary marriage arrangements".

12There is a further notation to the certificate in the following terms:

This marriage is an Islamic marriage (NIKAH), according to the faith of Islam only. It is a commitment ceremony and not an official marriage, according to Marriage Act 1961. It may or may not be combined with the official legal marriage.

13The concept of a temporary marriage of that form is not known in Australian law. While marriages entered into overseas can be recognised under Australian law if they are valid marriages in the relevant country, the ceremony between these two parties was conducted via video conference[7] with the parties in Perth, and the celebrant [interstate]. It appears likely, but is not entirely clear, that no divorce or equivalent is required to end a temporary marriage.

[7] At a time of travel restrictions due to the COVID pandemic.

14In the absence of proper submissions on point, let alone appropriately qualified evidence in relation to Islamic law, I make no determinative finding today as to whether or not the parties were married. While that determination informs the making of any final orders by reference to the appropriate legislation, it does not affect in practical terms the determination presently required.

15That said, I proceed on the basis that, unless it is subsequently established to the contrary, the parties are not married for the purposes of Australian law. I note both the matters already discussed, and in particular, that the relevant ceremony took place in Australia. I also note that in her initiating application filed on 23 December 2022 the mother indicated that the parties were not married, and that in his Case Information Affidavit filed on 24 February 2023 the father described the parties as having been in a de facto relationship.[8]

The matters requiring determination

[8] Albeit only for a period of approximately 19 months.

16Against that background, the matters requiring determination on an interlocutory basis may be briefly summarised.

17The mother proposes a raft of interlocutory orders in minutes filed on 23 August 2024 and 7 November 2024. In essence, she proposes that the $50,000 presently held on trust by the father's lawyers be immediately paid to her as a "partial property settlement", on the basis that the consent orders be set aside. She seeks further orders that the father pay her "the greater of 50 ounces of pure gold or the equivalent amount in cash"; the Islamic Marriage Certificate referred to earlier in these reasons describes the "marriage portion"[9] as 50 ounces of pure gold. On the basis of those orders being made, she proposes that she be restrained from taking further proceedings in Country A to enforce the mahr.

[9] Which is synonymous with mahr.

18In his amended response, the father seeks interlocutory orders that the mother's proposed orders to reopen the proceedings pursuant to s 205ZH(2) and the payment to her of the 50 ounces of pure gold, be summarily dismissed. He also seeks a permanent injunction restraining the mother from continuing or commencing proceedings in Country A in relation to the mahr,[10] that the $50,000 currently held on trust by his solicitors be transferred to the mother within one business day, and that the mother pay his costs.[11] In a statement of claim filed on 28 February 2024, he seeks in the alternative a variation to the consent orders to the effect that the mother relinquish any claim to the mahr, by the variety of mechanisms already summarised.

[10] Inaccurately described as a 'dowry' in his amended response.

[11] Father's amended response filed 11 November 2024 at 12.

19In essence, the mother seeks that the consent orders be varied so as to make payment of the mahr the subject of an enforceable order of this Court. The father seeks to preserve the consent orders, and to prevent the mother recovering the mahr either in this Court or in [Country A].

The nature of the mahr

20It is common ground that at the time the parties entered into the contract for their temporary marriage, payment of the mahr became a contractual right of the mother. That right, being a chose in action, is properly characterised as property.

21What is not clear, in the absence of suitable qualified evidence directed to the point, is whether the mother's entitlement to the mahr continues and is enforceable. I do not know whether the end of the temporary marriage of itself terminated the mother's entitlement. Similarly, I do not know whether the question of by which party the end of the relationship was instigated affects that entitlement.[12] There is no evidence before me to enable any reasoned assessment of the prospects of the mother enforcing payment of the mahr in what are apparently pending proceedings in Country A. Nor is there any evidence before me to enable a reasoned assessment of how long those proceedings might take if pursued, what steps would be required to bring them to completion, and whether the personal attendance of the father or for that matter the mother in Country A might be required.

[12] As may be the case: See Mohamed v Mohamed and Anor [2012] NSWSC 852.

22Those questions require attention by the parties. That is particularly so as there was no mention by either of them of the mahr in documents filed in this Court prior to the making of the consent orders. If, at the time the consent orders were made, the mahr was properly characterised as property of the mother and was not contemplated in the orders nor mentioned in the evidence, questions may arise as to whether the consent orders can properly stand. If, however, the mother no longer has any entitlement to the mahr under the marriage contract then there is no apparent basis for either party to seek to set aside the consent orders, and no utility in the proceedings in Country A remaining on foot.

23There is no admissible evidence presently before this Court to enable those matters to be considered further.[13]

Disposition

[13] I acknowledge that the mother attempted to file a letter purporting to contain relevant evidence in that regard. Appropriately, the letter was not accepted for filing. If either party seeks to adduce expert evidence, they will need to attend to the provisions of the Family Court Rules 2021 (WA).

24In those circumstances, for obvious reasons no order to set aside or vary the consent orders can presently be made. In the absence of agreement, it is highly unlikely that orders of that nature would be made on an interlocutory basis in any event. It cannot be said that a conclusion that the mother's application has no reasonable prospect of success can be reached on the evidence as it presently stands, or for that matter in circumstances where the father seeks to accompany summary dismissal with an anti-suit injunction. That is particularly so when, as counsel for the father pointed out in submissions, the mother has stated that she had legal advice that the mahr could not be recovered in proceedings in Australia. The father's evidence to date complains that the mother did not "disclose" the mahr – but of course as a party to the marriage contract he was aware of it. He complains that the mother did not raise it in the earlier proceedings – but neither did he. The father was represented in those proceedings by the same firm that represents him now.

25The mother says that in fact she gave the father notice of her intention to pursue the mahr in the Country A's courts prior to the consent orders being made in this Court, having been advised that she could not pursue it in the context of these proceedings. That evidence on the part of the mother is yet to be tested, and I do not treat it as being admitted by the father.

26Equally, the fundamental findings required to support a permanent anti-suit injunction simply cannot be made. If the mother remains entitled to the mahr, it may well be common ground that the consent orders should be set aside, with the only dispute then being as to what orders should be made in their place. On the other hand, the mother may on reflection abandon her proposition that the consent orders should be varied and seek simply to enforce payment of the mahr in the Country A's courts. In any event, orders were made by consent on 17 April 2024 requiring the mother to stay the proceedings in Country A until further order; those orders remain in force, and neither party has sought to discharge them on an interlocutory basis.

27The orders sought by the mother in relation to the $50,000 held on trust by the father's lawyers similarly cannot be made in the terms proposed by her, as those terms presuppose the setting aside of the initial consent orders.

28That said, the consent orders remain in force unless and until they are set aside. The father proposes to make the payment. The mother proposes that the payment be made but seeks to attach conditions to that payment which cannot be imposed in the present circumstances.

29The father's obligation to comply with the consent orders remains. The fact that the mother has applied to vary those orders does not alter that. Sensibly, counsel for the father acknowledged that point.

30I propose to order that the payment required under the consent orders be made. I do not propose to characterise that payment for the reasons just outlined. I acknowledge the positions of each of the parties in that regard. The making of the payment does not of itself affect the mother's substantive application; should she succeed in having the consent orders set aside or varied, the payment would clearly be taken into account in any subsequent exercise of discretion. The same observation applies to the father's response.

Steps from this point

31The parties need to consider the matters canvassed in these reasons and reconsider their respective approaches to the proceedings.

32As I foreshadowed at the previous hearing, in the absence of agreement on relevant matters expert evidence as to the status of the mahr under Country A's law, and the fundamental point of whether the mother remains entitled to it, is required. Similarly, if an anti-suit injunction is to be pursued expert evidence as to matters relevant to the pending court proceedings in Country A needs to be adduced.

33It is for the parties rather than the Court to address those matters. I acknowledge that the mother has tried to a limited extent to address those matters by proposing a particular expert be engaged by the Court, but with no disrespect to her that reflects a misunderstanding of the relevant process. I propose to order the parties to confer in that regard, and I expect that they will each consider whether in fact they wish to proceed in this Court, or potentially leave the consent property settlement orders intact and have the question of whether or not the mahr is to be paid determined by the Country A's court in which proceedings have already commenced.

Orders

Noting that there is an airport watchlist order currently in place but that order is due to expire on 23 December 2024;

And further noting that the payment referred to in paragraph 1 of these orders is to be made in compliance with paragraph 1 of the minute of consent orders forming part of the orders made on 18 September 2023, without prejudice to the rights of the parties to seek to vary or set aside those orders

There will be the following orders:

1.By no later than 4.00 pm on 20 November 2024, the Respondent, Mr RASHIMI AMID must do all things necessary to cause the sum of $50,000 presently held on trust by his solicitors to be paid to the Applicant, Ms JAFARI, into bank account [redacted].

2.All pending applications and responses of the parties to the extent they sought interlocutory relief in the form of orders varying or setting aside the orders made by consent on 18 September 2023, anti-suit injunctions, or summary dismissal, be and are hereby dismissed.

Watchlist

By consent, and with effect from 23 December 2024:

3.The Respondent, and his servants and/or agents be restrained and an injunction is hereby granted restraining each of them from removing or attempting to remove or causing or permitting the removal of the child, Roshan (male) born [redacted] ("the child") from the Commonwealth of Australia.

4.It is requested that the Australian Federal Police give effect to this order by placing the name of the said child on the Family Law Watch List in force at all points of arrival and departure in the Commonwealth of Australia and maintain the child's name on the Watch List.

5.The injunction contained in paragraph 3 of this order remain in force for a period of 2 years from 23 December 2024.

6.Upon expiration of the period referred to in the preceding paragraph and subject to any further order of a Court of competent jurisdiction, the Australian Federal Police will cause the removal of the said child names from the Watch List.

7.The Marshal and Officers of the Australian Federal Police and the Police Forces of the States and Territories are requested and authorised to give effect to these orders.

8.The Applicant, is to provide to the Australian Federal Police a 24 hour contact telephone number.

9.The Respondent have liberty to set aside or vary these orders upon reasonable notice to the Applicant.

10.The Form 2 Application of the Applicant filed on 8 November 2024 otherwise stand adjourned to the directions hearing to be listed pursuant to these orders.

Expert evidence

11.The parties and their lawyers if represented must personally confer by face-to-face meeting or telephone in relation to the appropriate future course of the proceedings, and in particular the question of expert evidence in relation to Country A's law.

Procedural orders

12.By 4.00 pm on 3 January 2025, the parties must file a joint minute setting out clearly:

(a)any interim, interlocutory or procedural orders which can be made by consent; and

(b)any other interim, interlocutory or procedural orders sought by either party but not agreed.

13.The proceedings are adjourned to a further directions hearing before the Honourable Justice O'Brien at not before 10.30 am [in] January 2025.

14.Costs reserved.

These reasons are the reasons for decision delivered [in] November 2024, edited in places but only as to correct grammatical errors and some infelicity of expression without variation to the substance thereof.

I certify that the preceding paragraph(s) comprise the reasons for decision of the Family Court of Western Australia.

KM

Associate

[IN] NOVEMBER 2024