Rahman and Rahman

[2011] FamCA 412

FAMILY COURT OF AUSTRALIA

RAHMAN & RAHMAN [2011] FamCA 412

FAMILY LAW - PROPERTY - vacation of hearing dates

APPLICANT: Ms Rahman

RESPONDENT: Mr Rahman

FILE NUMBER: SYF 4548 of 2006

DATE DELIVERED: 30 May 2011

PLACE DELIVERED: Sydney

PLACE HEARD: Sydney

JUDGMENT OF: Watts J

HEARING DATE: 30 May 2011

REPRESENTATION

SOLICITOR FOR THE APPLICANT: Jordan Djunda

COUNSEL FOR THE RESPONDENT: Mr Levitt

SOLICITOR FOR THE RESPONDENT: H.K. Husseini & Co

Orders

1. The hearing dates that are scheduled for 6 to 8 June be vacated.

2. This matter be listed for a final hearing for three days commencing 11 October 2011.

3. The wife’s application that the husband pay the sum of $10,000 by way of bond to the Department of Immigration and Citizenship be dismissed.

4. The husband’s interim oral application that he be able to have his passport back and travel outside Australia be dismissed.

5. The wife pay the husband’s costs of this application and of any costs that have been reasonably incurred and lost as a result of the order vacating the June hearing dates, as agreed or assessed, on a party/party basis. Any payment of this order be stayed pending determination of the final matter.

6. Case outlines be filed and served within 14 days.

It is noted that publication of this judgment under the pseudonym Rahman & Rahman is approved pursuant to s 121 (9) (g) of the Family Law Act 1975 (Cth).

FAMILY COURT OF AUSTRALIA AT SYDNEY

FILE NUMBER:  SYF 4548 of 2006

Ms Rahman

Applicant

And

Mr Rahman

Respondent

EX TEMPORE REASONS FOR JUDGMENT

1. On 27 May 2011 the wife filed an application that the trial date that is due next Monday, 6 June 2011, be vacated; that the hearing be set down at a later time and that the husband pay an amount of $10,000 in cash to be used by way of a bond with the Department of Immigration and Citizenship. It seems that such a bond is necessary to ensure the attendance in Australia of the wife’s father as a witness in these proceedings. 

2. There was discussion before me on a previous occasion and today which indicates he is likely to be a pivotal witness to the central issue in the proceedings, namely, what has happened to substantially all the matrimonial assets which have been moved from Australia to Lebanon. 

3. This is the second application for vacation of hearing dates in this matter. On 23 February 2011, Mr Jordan and Mr Levitt appeared.  There was an application on that day for the vacation of hearing dates. At that time the basic reason why the dates were vacated was the unavailability of the wife’s father to personally give evidence in the case. 

4. The husband has indicated that he would oppose the wife being able to rely upon affidavits sworn by the wife’s father in circumstances where the wife’s father was not personally present during the trial to be tested on his evidence.  Given the central nature of his evidence, I indicated on the last occasion that I would not be prepared to allow him to give evidence by electronic means.

5. Mr Jordan, on that occasion, according to my notation, indicated that the wife was confident that she would be able to make arrangements to have her father here for the rescheduled final hearing which I proposed would commence on 6 June 2011.  The wife has filed an affidavit on 27 May 2011 which sets out the fact that she, at an unknown date, attended the Department of Immigration and obtained a relevant application form, completed it so far as she could do that, sent it to her father in Lebanon, he completed the balance, it came back to Australia and it was lodged with the Department.

6. What we do know is that it was not lodged with the Department until 3 May 2011.  On or about that day, Mr Jordan has told me today, and Mr Levitt has not taken any point about the information Mr Jordan has given me, that he himself prepared a letter and gave it to his client to take to the Department explaining the circumstances in which the wife’s father was required to come to Australia.  Nonetheless, for reasons which are not particularly clear to me, the Department have required that a bond of $10,000 in cash be provided to assure that the wife’s father complies with the terms of his visa which presumably would require him to leave at a particular date once the period allowed for his visit had expired.

7. It is clear from the evidence that as we sit here today, this man is not going to be in Australia next Monday.  I am unable on the evidence to categorically say that the wife has been tardy in terms of getting her act together to ensure that her father is here.  She certainly, obviously, has taken quite a number of steps to attempt to do that, whether or not she did it in a timely way, whether or not she wasted time between 23 February and 3 May, I cannot really say. 

8. The wife’s lawyer gives me an assurance that his client has indicated that she will, over time through relatives, be able to raise the necessary cash in order to provide a bond to the Department.

9. The wife’s primary position is that an order should be made that the husband pays the $10,000 bond. Mr Levitt correctly makes the point that if I require the husband to provide this bond, I could not confidently say that that money would fulfil the necessary intended role of it being security for the wife’s father’s return to Lebanon.  I agree, given what I know about this case, I could confidently predict that the wife’s father and the wife may not worry too much if the husband lost the $10,000.  I think it is not appropriate, accordingly, that I make an order that the husband provide this bond.  In addition, Mr Levitt, understandably given the notice that has been given, has no instructions from his client to agree to such an order, nor do I have sufficient updated financial details to make a decision about whether or not the husband has a capacity in a short period of time to raise these moneys. For those reasons I will not be making an order that the husband pay the bond.

10. This case has had a long and sorry history.  There have been a number of adjournments sought on both sides and Mr Jordan has asserted during submissions, without Mr Levitt really cavilling about it, that the husband has on occasions sought a number of adjournments.  It seems to me that the wife should be given one last chance to attempt to have her father here.  I intend to vacate the hearing dates.  I intend to set the matter down on 11 October for three days.  That should provide sufficient time for the wife to have ample opportunity to correct what she has had difficulties with up until now.  If she does not use that time or is unable to achieve the attendance by her father to Australia in that time, then the hearing will proceed on 11 October without the wife’s father giving evidence in the case. 

11. In relation to the issue of the husband’s passport in the meantime, a central allegation in this case is the wife’s assertion that the husband has removed virtually all the matrimonial assets from Australia and has invested or secreted them in Lebanon. If the husband between now and the final hearing is allowed to leave the country it may well render nugatory any findings that might be made in the wife’s favour as a result of the fully contested hearing.  I have not been given any indication as to any imperative need for the husband to leave the country and the hearing dates, whilst some months away, are not an extraordinarily long way away. In those circumstances I do not intend to interfere with the decision I made on the last occasion in relation to the father’s passport. 

12. In relation to costs thrown away it is quite clear that what the wife seeks is a significant indulgence.  I bear in mind that she has not fully explained what she did between 23 February and 3 May and I think it is appropriate for the husband to have his costs of this application and any costs that are proven to have been thrown away as a result of the vacation of the hearing dates. 

13. The final issue that was raised by Mr Jordan related to him being uncertain as to exactly what material the husband did intend to rely upon at the final hearing and I will order that both parties file and serve a case outline within 14 days.

I certify that the preceding thirteen (13) are a true copy of the ex tempore reasons for judgment of the Honourable Justice Watts delivered on 30 May 2011.

Associate: 

Date:  3 June 2011