Rahman and Rahman

[2020] FamCA 156

FAMILY COURT OF AUSTRALIA

RAHMAN & RAHMAN [2020] FamCA 156

FAMILY LAW – INJUNCTIONS – Where Orders were made in 2012 for the husband to pay the wife a lump sum of $377,000 – Where the husband controlled the matrimonial assets outside of Australia – Where the husband was restrained from leaving Australia until a lump sum payment was made – Where the husband declared bankruptcy – Where the bankruptcy has been discharged – Where the husband filed an Application for the injunction to be lifted without payment of the lump sum to the wife – Application dismissed.

Bankruptcy Act 1966 (Cth) s 59A
Bankruptcy and Family Law Legislation Amendment Act 2005 (Cth)

Ejje & Ejje (2003) FLC 93-129

APPLICANT: Mr Rahman

RESPONDENT: Ms Rahman

FILE NUMBER: SYC 7852 of 2007

DATE DELIVERED: 13 March 2020

PLACE DELIVERED: Sydney

PLACE HEARD: Sydney

JUDGMENT OF: Rees J

HEARING DATE: 9 March 2020

REPRESENTATION

COUNSEL FOR THE APPLICANT: Mr Jackson

SOLICITOR FOR THE APPLICANT: MCW Lawyers

SOLICITOR FOR THE RESPONDENT: Jordan Djundja Lawyers

Orders

IT IS ORDERED

1. That the application of the husband filed 30 May 2017 be 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 Rahman & Rahman 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 SYDNEY

FILE NUMBER: SYC 7852 of 2007

Mr Rahman

Applicant

And

Ms Rahman

Respondent

REASONS FOR JUDGMENT

1. Orders were made in proceedings for property settlement between Mr Rahman (“the husband”) and Ms Rahman (“the wife”), on 10 February 2012. Pursuant to those orders, the husband was to pay to the wife the sum of $377,000 and was restrained from leaving the Commonwealth of Australia until such time as the sum was paid. In summary, the trial judge found that the husband had improperly sent some $580,000 of matrimonial funds to Lebanon so as to put those funds beyond the reach of the wife in her property settlement proceedings.

2. The husband unsuccessfully appealed the orders of the trial judge. Dealing with the issue of freedom of movement, Murphy J, in a separate judgment, stated:

   There is no doubt a court exercising jurisdiction under the Family Law Act1975 (Cth) (“the Act”) has the power to make an order, pursuant to s 114, restraining a person from leaving Australia pending compliance with orders, including final orders (see, for example, Anstis & Anstis (1999) 26 Fam LR 548, Khademollah & Khademollah (2000) FLC 93-050, Brown & Brown (2007) FLC 93-316 and Porto & Porto (No 3) (2010) 45 Fam LR 101).

   Indeed, the written submissions filed on behalf of the appellant accept as much (see, [33]). The error asserted in Ground 4 is that his Honour failed to “consider at any level how the making of Orders 4 to 7 inclusive impacted on the Husband’s right of freedom to leave the Commonwealth of Australia … in accordance with Article 12.2 [of the International Covenant on Civil and Political Rights]”.

   A person’s freedom of movement is, by virtue of Australia’s ratification of the International Covenant on Civil and Political Rights (“ICCPR”), certainly a relevant consideration when making an order pursuant to s 114 restraining a person from leaving Australia (see, Minister for Immigration and Ethnic Affairs v Teoh (1995) 183 CLR 273, particularly Mason CJ and Dean J at 286-288).

   However, that consideration must be taken into account by reference to the plain terms of the relevant municipal law and balanced against a competing principle relating to the likelihood that the party applying for the order will be denied a remedy if the respondent’s freedom to leave the jurisdiction is not restrained (see, for example, Anstis at [38]). The Full Federal Court said recently in Talacko v Talacko (2010) 183 FCR 311 (at 326), in respect of s 30(1) of the Bankruptcy Act which, like s 114 of the Act, confers a “broad discretionary power in support of its jurisdiction”:

   To restrain a citizen from travelling is an order which would not be granted lightly and, in granting the order, the importance of the right to be free to travel would be a significant consideration to weigh in the balance. So, also, would be the prospect that the [orders sought to be effected by virtue of the restraint] would be defeated … if travel were not restrained … The weighing of such considerations in the course of the exercise of judicial discretion is a task with which courts are charged on many occasions.

3. The husband has not paid the amount due to the wife, or any portion of that amount.

4. By his application filed 30 May 2017, the husband seeks to discharge such of the orders of the trial judge which impinge on his freedom of movement out of Australia. That application is opposed by the wife.

5. Both parties have filed written submissions. Each relies on an affidavit.

THE HUSBAND’S CASE

1. Since the making of the relevant orders in 2012, a number of events have occurred.

2. The husband filed a debtor’s petition in 2013, was made bankrupt, and was discharged from bankruptcy in 2016.

3. In 2015, the husband married, by proxy, a resident of Lebanon.

4. The husband relies on three submissions.

5. Firstly, in so far as I understand the submission, it is asserted that the husband does not have the ability to “enjoy the fruits of the matrimonial assets overseas” and therefore there is no reason to continue the injunctions. That submission can be dealt with shortly. The trial judge found that the husband had money in Lebanon and the Full Court upheld that finding.

6. Secondly, he contends that, the orders significantly impede the husband’s freedom of movement “as set out in the United Nations International Covenant on Civil and Human Rights, the International Covenant on Civil and Political Rights and the Universal Declaration of Human Rights”.

7. The third submission contends that the provisions of the Bankruptcy Act have the effect that the discharge from bankruptcy “would overrule Orders 4 to 7 made by the Family Court of Australia on 10^th February 2012. As such, there would be no reason why the Husband should not thereafter be permitted to travel overseas”.

THE HUSBAND’S FREEEDOM OF MOVEMENT

1. In relation to this submission, I adopt, with respect, the statements of Murphy J set out above.

2. The husband’s freedom of movement must be weighed against the prospect that the orders of the Court would be defeated if the husband were permitted to travel to Lebanon whence the matrimonial funds were sent.

3. I reject the submission made by counsel for the husband, in answer to a question from the bench that if, after eight years, a husband is obdurate and refuses to comply with orders, the Court should simply “give up” and allow him to travel. 

4. There is little more that can be done to force the husband to comply with the orders of the Court than to restrict his freedom to travel to Lebanon.

5. This is particularly so in circumstances where the husband has made no attempt to comply with his obligations, despite the fact that, at the hearing of this application, he had some $115,000 in the bank and an excess of income over expenditure of some $1,400 per week.

6. If he is permitted to travel, what incentive does he have to comply?

7. In the balancing exercise I consider that the husband’s compliance with orders of the Court outweighs his personal freedom of movement.

THE EFFECT OF THE BANKRUPCY

1. Section 59A of the Bankruptcy Act 1966 (Cth) (“Bankruptcy Act”) provides that the preceding sections 58 and 59 (the vesting provisions) have effect “subject to an order under Part VIII or VIIIAB of the Family Law Act 1975”.

2. It was conceded on behalf of the husband that the effect of s 59A is that the order made by the Family Court is not affected by either the bankruptcy or the discharge or annulment of the bankruptcy.

3. In so far as significant reliance is placed in the husband’s case on the decision of the Full Court of Ejje & Ejje (2003) FLC 93-129, I note that s 59A was introduced into the Bankruptcy Act in 2005 in the Bankruptcy and Family Law Legislation Amendment Act 2005 (Cth) and the reasoning of the Full Court in Ejje is of no present relevance.

4. In circumstances where the substantive order of the Court remains on foot and unsatisfied, the provisions of the Bankruptcy Act place no fetter on the Court’s ability to make orders by way of injunction intended to effect compliance with those orders.

5. The matters that justified the making of the injunction order by the trial judge remain as they were.

6. The application will be dismissed.

I certify that the preceding twenty-five (25) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Rees delivered on 13 March 2020.

Associate:

Date:  13/03/2020