Khademollah v Khademollah

[2007] HCATrans 43

[2007] HCATrans 043

IN THE HIGH COURT OF AUSTRALIA

Office of the Registry
  Melbourne  No M99 of 2006

B e t w e e n -

ROUHOLLAH KHADEMOLLAH

Applicant

and

SORAYA KHADEMOLLAH

Respondent

Application for special leave to appeal

Publication of reasons and pronouncement of orders

GUMMOW J
HEYDON J

TRANSCRIPT OF PROCEEDINGS

AT CANBERRA ON THURSDAY, 8 FEBRUARY 2007, AT 9.37 AM

Copyright in the High Court of Australia

GUMMOW J:   In early 2006, the applicant husband sought leave to commence proceedings in the Family Court of Australia seeking orders to vary the property settlement made upon the dissolution of his marriage to the respondent wife.  The applicant required leave to commence proceedings because, on 28 April 2000, an injunctive order had been made by Carter J restraining the applicant from instituting further proceedings against the respondent under the Family Law Act 1975 (Cth) (“the Act”) without the prior leave of the court. Final orders with respect to the property adjustment had been made by Brown J on 20 December 1999, and varied by the Full Court on 5 September 2000. An application for special leave to appeal was dismissed by this Court (Gleeson CJ and Callinan J) on 15 February 2002.

On 1 May 2006, leave to institute the proceedings was refused by Bennett J, who noted that the applicant had exhausted all rights of appeal in relation to the property orders and that the Family Court did not have jurisdiction to make further orders in relation thereto unless s 79A of the Act were invoked. An application for leave to appeal to the Full Court (Kay, Warnick and May JJ) failed. This instance represented merely the most recent of the numerous occasions on which the applicant has sought and been denied leave to file proceedings seeking to set aside or vary the property orders, and has unsuccessfully appealed those refusals to the Full Court. Indeed, this Court (Gummow and Kirby JJ) has, on 14 November 2005, already refused an application by the applicant for special leave to appeal from just such an order.

The applicant’s written case is lengthy, and accompanied by lengthy affidavits.  It does not address the threshold issue of the refusal by Bennett J to grant leave to issue the proceedings, which leave was in any event very properly refused.  There would be no prospect of success on any appeal to this Court against the orders of the Full Court.  Special leave is refused.

Pursuant to r 41.10.5 we direct the Registrar to draw up, sign and seal an order dismissing the application for special leave.  I publish the disposition signed by Heydon J and myself.

AT 9.39 AM THE MATTER WAS CONCLUDED