Rahman & Rahman
[2013] FamCAFC 162
•9 October 2013
FAMILY COURT OF AUSTRALIA
| RAHMAN & RAHMAN | [2013] FamCAFC 162 |
| FAMILY LAW – APPEAL – PROPERTY – CREDIT – where the appellant husband appeals property orders requiring him to make a payment to the respondent wife and restraining him from leaving the jurisdiction until such payment is made – where the appellant contends the trial judge erred in making an adverse finding of credit against him in light of s 140 of the Evidence Act 1995 (Cth) – where the evidence available to the trial judge was sufficient to found the adverse finding – no error demonstrated. FAMILY LAW – APPEAL – PROPERTY – RESTRAINT – where the appellant appeals the order of the trial judge restraining him from leaving the jurisdiction until payment made to the respondent wife – where the appellant contends the trial judge erred by not considering the Bankruptcy Act 1966 (Cth) – where the appellant is not a bankrupt – where the issue of bankruptcy was not raised before the trial judge – no error demonstrated – where the appellant further contends the trial judge erred in making the order restraining him from leaving the jurisdiction by failing to consider his human rights – where the trial judge found that the appellant had transferred to the totality of the parties’ assets overseas – where the appellant’s appeal against that finding failed – where the appellant did not provide any evidence of any other money available to satisfy the order – whether the trial Judge erred – where the evidence before the trial judge was sufficient to found the order restraining the appellant from leaving the jurisdiction until payment is made – no error demonstrated – appellant ordered to pay the respondent’s costs of the appeal. |
| Bankruptcy Act 1966 (Cth) Evidence Act 1995 (Cth): s 140 Family Law Act 1975 (Cth): ss 79, 81 |
International Covenant on Civil and Political Rights , opened for signature 16 December 1966, 999 UNTS 171 (entered into force 23 March 1976).
Universal Declaration on Human Rights, GA Res 217A (III), UNGAOR, 3rd sess, 183rd plen mtg, UN Doc A/810 (10 December 1948).
| Anstis & Anstis (1999) 26 Fam LR 548 |
| APPELLANT: | Mr Rahman |
| RESPONDENT: | Ms Rahman |
| APPEAL NUMBER: | EA | 29 | of | 2012 |
| FILE NUMBER: | SYF | 4548 | of | 2006 |
| DATE DELIVERED: | 9 October 2013 |
| PLACE DELIVERED: | Brisbane |
| DATE HEARD: | 10 July 2013 |
| PLACE HEARD: | Sydney |
| JUDGMENT OF: | May, Ainslie-Wallace & Murphy JJ |
| LOWER COURT JURISDICTION: | Family Court of Australia |
| LOWER COURT JUDGMENT DATE: | 10 February 2012 |
| LOWER COURT MNC: | [2012] FamCA 51 |
REPRESENTATION
| COUNSEL FOR THE APPELLANT: | Mr Jackson |
| SOLICITORS FOR THE APPELLANT: | MCW Lawyers Pty Ltd |
| COUNSEL FOR THE RESPONDENT: | Ms Veloskey |
| SOLICITORS FOR THE RESPONDENT: | Jordan Djunda Lawyers |
Orders
The appeal be dismissed.
The husband pay the wife’s costs of and incidental to the appeal on a party and party basis to be agreed or assessed.
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).
| THE FULL COURT OF THE FAMILY COURT OF AUSTRALIA AT SYDNEY |
Appeal Number: EA 29 of 2012
File Number: SYF 4548 of 2006
| Mr Rahman |
Appellant
and
| Ms Rahman |
Respondent
REASONS FOR JUDGMENT
May & Ainslie-Wallace JJ
Mr Rahman (“the husband”) appeals against property orders and injunctions made by Watts J on 10 February 2012 in proceedings against Ms Rahman (“the wife”). The wife opposes the appeal and seeks to maintain his Honour’s orders.
The parties married in August 1992 and separated in August 2006. There are three children of the marriage. The wife was born in Lebanon. The parties married there and then moved to Australia. During the course of the marriage, the parties travelled to Lebanon for various purposes. The wife’s family live in Lebanon. The husband travelled to Lebanon during the marriage and after the separation of the parties.
At the time of the hearing before the trial judge, there were no or no significant assets of the parties in Australia. The central issue in dispute before the
trial judge was the fate of approximately $580,000 of the parties’ money.
It was uncontentious that in August 2005 the husband transferred some $130,000 from a bank account in Australia to Lebanon. On 26 August 2005 the husband drew down $450,000 on a mortgage facility and transferred that money to Lebanon. The mortgage was over the marital home of the parties and the repayments eventually fell into arrears. The house was eventually sold by the mortgagee, the proceeds falling short of the debt owed and there remained approximately $50,000 shortfall.
The husband’s case before the trial judge was that the money transferred to Lebanon was to be used to purchase land for development at the suggestion of the wife’s father. The husband asserted that he handed the money to the wife’s father on 30 August 2005 and was informed by him shortly thereafter that the purported vendor of the land did not in fact own the land and had taken the money. The husband maintained that he had been defrauded of the money by the wife’s father. The wife and her father denied that the husband had given the money to her father to purchase property or at all and maintained that when the original land purchase did not proceed the husband had retained the money.
The trial judge did not accept the husband’s assertions and found, consistent with the wife’s case that the husband had taken the money. Further, flowing from that finding, that the husband had failed to disclose what had happened to the funds. His Honour inferred that the husband still had access to the money and considered the marital assets to include the sum of $580,000. The trial judge ordered the husband to pay the wife $377,000 representing 65 per cent of the adjusted asset pool.
The orders from which the husband appeals are as follows:
3.Pursuant to s 79 Family Law Act 1975 (Cth) the husband pay to the wife within 28 days the sum of $377,000.
4.Until the husband has complied with order 3 and pursuant to s 114(3) Family Law Act 1975 (Cth), the husband be restrained by injunction from leaving Australia.
5.All officers of the Australian Federal Police are requested to assist in the implementation of order 4.
6.Until the husband has complied with order 3, the court requests that the Australian Federal Police place the details of the husband on the watchlist at all Australian international departure points.
7.Until the husband has complied with order 3, the officer manager Sydney Registry of this court, is to continue to hold the passport or passports of the husband and the husband is to surrender any other passport that he may hold from time to time to the office manager, Sydney Registry of this court.
8.All applications made by the husband be dismissed.
Given the narrow compass of the matter in dispute, it is not necessary to repeat his Honour’s reasons save to give context to the grounds of appeal.
The trial judge’s reasons
In coming to the conclusions about the money, his Honour placed reliance on the manner in which the money was transferred from Australia to Lebanon. The husband asserted that the funds were transferred by way of two cheques, one for $130,000 and the other for $450,000. His Honour observed that the money was in fact transferred by bank drafts in favour of the husband’s brother and payable at a branch of the same bank in Lebanon. The trial judge rejected the husband’s evidence as to how his brother came to negotiate the bank drafts and concluded that the “strong inference” to be drawn from the manner in which the money was transferred was that the husband’s brother travelled with him to Lebanon in order to negotiate the bills of exchange at the Lebanese bank. [140]
His Honour concluded:
142. …The lack of plausible explanation by the husband as to how he obtained release of monies he had arranged to send to the Arab Bank in Lebanon in his brother’s name is a major difficulty in this case.
His Honour said:
161. Tellingly, the husband has not explained how money effectively transferred to the Arab Bank in Lebanon in his brother’s name was negotiated. I am left to wonder what involvement [the husband’s brother] had when he travelled with the husband to Lebanon in August 2005. The husband did not make any effort to go to the bank in Lebanon to get any records, even though he had three opportunities of doing so. He did not attempt by way of any contacts he has in Lebanon, to obtain documents from that bank and quite disingenuously during his cross examination, feigned ignorance as to which bank he could make such an enquiry. That answer was telling against the husband given that in 2006 the husband still had money in that bank in Lebanon.
As to the orders to be made, his Honour said:
163. Counsel for the husband submitted that I wouldn’t be able to make a property order if I was not able to find that the monies still existed. In this case, I find that the husband has failed to disclose to the court what really happened to the $580,000. In those circumstances, I do not need to be able to make a finding about what has happened to the money in order to make an order against the husband…
164. It follows from the findings that I have made that I am of the view that the husband has failed to explain what happened to the sum of $580,000 that left Australia in August 2005. It follows therefore that I am confident that the asset pool is at least of that amount. As discussed above, the parties agreed that whatever the asset pool was found to be, it should be divided 65 percent to the wife and
35 percent to the husband. In those circumstances, it follows that the wife should be successful in obtaining an order pursuant to s 79 FLA that the husband pay to her the sum of $377,000.His Honour then turned to the wife’s application that the husband be restrained from leaving Australia while that order remained unsatisfied. He said:
165. The wife also seeks that the husband be restrained from leaving Australia whilst any sum which is ordered to be paid remains outstanding. I have no evidence at all that the husband has any assets or financial resources at his disposal currently in Australia. The order to be made in the wife’s favour pursuant to s 79 FLA is therefore practically unenforceable by the wife given that the husband’s assets are outside Australia.
166. It appears to me to be just and convenient to order that the husband not leave the jurisdiction until such time as he has satisfied the order that has been made. The order for payment would be otiose, particularly if the husband was free to leave the jurisdiction and enjoy the entire fruits of the matrimonial assets overseas, whether by permanently leaving the jurisdiction or visiting overseas from time to time.
The trial judge rejected an argument advanced on behalf of the husband that s 81 of the Family Law Act 1975 (Cth) (“the Act”) prevented him from making an “open ended” injunction and said:
167. ...I find the husband took the sum of $580,000 from Australia. I infer that he still has control over it. He should not be allowed to leave Australia in order to enjoy that control or those monies and the injunctive order will remain in place until he satisfies the order for payment of property to the wife in aid of encouraging him to do so.
The appeal
Six grounds of appeal were raised. The sixth ground was abandoned.
Ground 1. His Honour erred in making an adverse finding against the Husband that he had improperly transferred $587,000 from Australia to Lebanon, in that, relying upon section 140(2) of the Evidence Act, 1995 (Cth), the evidence supporting such a finding was not adequate enough for the Court to make such a finding.
The written argument in relation to this ground appears to challenge the sufficiency of the evidence on which the trial judge based his finding however, it appears that the substance of the challenge is that, given the seriousness of his Honour’s decision to reject the husband’s evidence, the trial judge did not give sufficient weight to the effect of the orders.
The essence of the argument as we understood it was that his Honour, in rejecting the husband’s case about the circumstances in which the money was transferred to Lebanon and its eventual fate amounted to a finding that the husband had lied in his evidence. It was submitted that being the case, his Honour was obliged to carefully weigh the evidence supporting the finding and apply the considerations referred to in s 140(2) of the Evidence Act 1995 (Cth). It was contended that his Honour had not applied the correct standard of proof.
The Evidence Act in s 140(1) requires proof on the balance of probabilities but ss (2) enables the court to take account of the nature of the cause of action or defence, the nature of the subject matter of the proceeding, and the gravity of the matters alleged. His Honour’s rejection of the husband’s evidence, even if we accept that it amounted to a finding that the husband lied (which, we do not), was a finding well open to his Honour on the evidence before him. Neither anything put to us nor anything in his Honour’s reasons support the assertion that he had failed to pay proper regard to s 140 of the Evidence Act.
It was argued that central to the trial judge’s rejection of the husband’s version of events was his findings about the circumstances in which the money was transferred by bank draft in favour of the husband’s brother and particularly his rejection of the husband’s evidence as to how those bank drafts were negotiated in Lebanon. While the rejection of the husband’s contention on this point was important to his Honour’s findings, it was by no means the only basis on which his Honour rejected the husband’s version of events and his assessment of the husband’s credibility generally.
The wife’s father and her brother gave evidence. The judge concluded as to the father and the husband that “I am unable to rely on the evidence of either man to resolve the conflict between their different versions.”[66] However, the judge accepted the evidence of the wife’s brother where it differed from that of the husband.
The trial judge’s assessment of the evidence of the husband together with the husband’s failure to call evidence from his brother well entitled him to come to the conclusions he did.
We find no substance in this ground of appeal.
Ground 2. His Honour erred in making Orders 4 to 7 inclusive, in that he failed to consider the effects of the provisions of the Bankruptcy Act.
The argument in support of this ground may be shortly stated; the husband contended that the effect of the injunction restraining him from leaving Australia until the s 79 order had been satisfied would be to permanently restrain the husband from ever leaving Australia. As will be seen in our discussion of the other grounds of appeal, this submission is founded on an unacceptable premise and we reject it.
However, the thrust of the submission is that the husband could, should he wish, present his own petition for bankruptcy and in that event he would be prevented from leaving Australia until his bankruptcy was discharged and then be relieved of the obligation under the orders. This it was submitted would thus circumvent his Honour’s orders. It should not be assumed that we accept the submission accurately reflects the extent of the law in relation to bankruptcy.
Clearly this submission is entirely irrelevant to the present appeal. It cannot speak of error in his Honour’s judgement.
Ground 3. His Honour erred in making Orders 4 to 7 inclusive, in that he failed to consider, noting the potential permanency of such orders, a likelihood that the Wife would be denied a remedy if the Husband’s freedom to leave the jurisdiction is not limited or suspended.
It was not suggested that the trial judge’s reference to and reliance on Black & Kellner (1992) FLC 92-287 and the subsequent authorities was in error. It assists the understanding of the thrust of this challenge to have regard to the written submissions. It was asserted:
11. His Honour made a finding that the husband had unilaterally transferred $580,000 overseas. That finding is subject to challenge in this Appeal (see Ground one)….
12. It is also conceded that if the Court made a finding as to non-disclosure, for the purpose of making orders pursuant to s 79 of the Family Law Act, His Honour did not have to make a finding as to what happened to money that was found to go overseas. Herein His Honour correctly approached this position at paragraph 163 of the Reasons for Judgment.
13. It is submitted that where His Honour fell into error was to make a critical finding that the husband still enjoyed the entire fruits of the matrimonial property, and that, presumably, such a finding was necessary to make the injunction orders that it ultimately did.
14. The Court determined that it was in August 2005 that the Husband had transferred for his own benefit the amounts of $USD131,000 and $AUD450,000. The hearing before the Court took place in October and November 2011, nearly 6 ½ years later.
15. His Honour’s comments at paragraph 166 concerning the Husband being free to leave the jurisdiction and enjoy the entire fruits of the matrimonial assets overseas were essential to the Court making Orders 4 to 7 inclusive. If the Court did consider that the Husband no longer had the benefit of “the entire fruits of the matrimonial assets overseas”, there would clearly be no reason to make the injunctions set out in Orders 4 to 7. Other than to solely punish the Husband, such injunctive orders would have been entirely gratuitous.
16. There is no evidence that supports the proposition that the Husband, some 6 ½ years after a transfer overseas of any monies, still had access to the entire fruits of the matrimonial assets. As noted above, the Husband was never cross examined about this issue. Further, it was never raised by the Wife as being part of her case that the Husband still owned or had access to these assets.
17. If the Court had heard the matter within say, 3 years or less of any overseas transfer of matrimonial assets, it would probably be open to the Court to find by way of making a reasonable assumption, that the Husband still retained at least a significant proportion of the assets. If that were the case the making of injunction orders would have been appropriate.
18. However, in this case a gap of 6 ½ years made it necessary for the court, in making the injunction orders it did, to be satisfied that the Husband would not be reasonably likely to satisfy his obligations to the Wife as set out in the orders made under s 79 of the Family Law Act. That is an important question that was never answered by the Court.
In elaboration of the point about the husband not being cross examined about whether he had any or all of the money at his disposal, counsel who appeared for the husband on the appeal said words to the effect that, had he been asked, the husband might have said that he did not have any funds left. It is not entirely clear to us how these submissions could support the appeal being allowed. It was submitted that in some way the application for an injunction should have been dealt with separately and despite the husband’s position contained in his affidavits, there should have been some other enquiry and a higher standard of proof applied.
It bears repeating that the husband’s case before the trial judge was that, while he did take the money to Lebanon, he gave it all to the wife’s father in
August 2005 and never had access to the funds again. He alleged that the wife’s father had defrauded him and preyed on his innocent simplicity in matters of business. It also needs to be repeated that his Honour rejected that account and found that the husband had removed the money to Lebanon and that he still had access to those funds. In so finding, the trial judge rejected the husband’s submission that he does not have and did not have the funds in his possession after August 2005.
Obviously the foundation of the submission relies on a case entirely different from that argued at trial. To the extent that it is necessary to deal with the point about there being no cross examination of the husband as to how much, if any, of the transferred funds remained, we simply observe that, in the light of the husband’s case, there was absolutely no point and certainly no need to challenge him on the point.
The injunction in aid of the s 79 order was against the background of his Honour’s findings that the husband’s evidence was not reliable [54], that his version as to what happened to the money in Lebanon was not to be believed [160], that despite returning to Lebanon on three occasions after August 2005, no money was recovered [153] and that he had failed to make proper disclosure of the whereabouts of the funds removed from Australia [163]. The trial judge’s conclusion that the husband still had access to those funds, underpinned by the findings to which we have just referred, was one entirely open to him.
In ordering the injunction, his Honour considered that it was “just and convenient” to restrain the husband from enjoying the benefits of the money removed from Australia and which would thwart the effect of the order for payment of some of those funds to the wife.
His Honour’s reasons reveal that he was conscious of the husband’s connection with Lebanon including that he returned there on a number of occasions after the separation of the parties.
We observe that in order to mount a successful challenge to his Honour’s finding in this regard, the husband must demonstrate not that another finding was available to his Honour, but that it was not open to his Honour on the evidence to make that finding. The husband has not made out this challenge to the trial judge’s findings.
Ground 4. His Honour erred in making Orders 4 to 7 inclusive, in that he failed to consider, noting the potential permanency of such orders, that such orders would impact upon the Husband’s otherwise right for freedom of movement as set out in the United Nations’ charter of the International Covenant on Civil and Human Rights [sic], the International Covenant on Civil and Political Rights and the Universal Declaration of Human Rights.
We observe at the outset that this ground is based on the premise already rejected by us that the husband did not have access to the funds removed by him from Australia with the result that he can never satisfy the s 79 order. In those circumstances, we do not feel it incumbent on us to consider whether and, if so, to what extent, these various conventions have relevance to the making of an injunction especially as we were not taken to any legislation or conventions to support the argument. It was not argued before the trial judge that such an order would be in breach of any convention.
Ground 5. His Honour erred in that it was not open to him on the evidence before him to make a finding that the Husband at the time of the trial had at his disposal the ‘fruits of the matrimonial assets’.
We have already dealt with this contention in the course of dealing with Ground 3. We reject the contention and find no substance in the asserted ground of appeal.
It is not necessary to refer at any length to the submissions of Ms Velosky other than to note that she correctly submitted that it may not be necessary for the husband to leave the country to discharge his obligations to satisfy the order. Further, that the judge in making the orders restraining the husband properly took into account the position of the wife.
Conclusion
It follows that the appeal will be dismissed.
Costs
As is our custom, we sought submissions from the parties as to the costs of the appeal. Counsel for the husband conceded that if the appeal was dismissed the husband could not resist an order for costs. Counsel further indicated that the husband is in receipt of no income and his financial affidavit discloses no assets.
Clearly, whether to make an order for costs against a party must be considered against the provisions of s 117(2A) of the Act. However, we are mindful of two matters; first the unsuccessful challenge to the trial judge’s determination means that his conclusions about the husband’s access to the funds removed to Lebanon remain and would provide a basis for the payment of costs. Secondly, indigence is not a bar to the court making an order for costs where it was otherwise appropriate to do so. This is an appeal which has failed but which in our view was entirely without merit. It is an appropriate case in which to order the husband to pay the wife’s costs of the appeal.
Murphy J
I have had the advantage of reading in draft form the joint Reasons of May and Ainslie-Wallace JJ. Those Reasons set out the grounds of appeal and the relevant background.
Challenges to the Findings - Grounds 1 and 5
Having read the written outline of submissions filed on behalf of the appellant and listened carefully to the oral argument of counsel on his behalf, I remain unclear as to what precisely is meant by the assertion in Ground 1 that evidence was not “adequate enough” to support “…an adverse finding against the Husband that he had improperly transferred $587,000 from Australia to Lebanon…” The ultimate finding to which the challenge is directed is, as the Reasons make abundantly clear, the conclusion drawn from a series of factual findings. Neither Ground 1 nor any argument advanced in respect of it identifies any specific factual error said to have been made by his Honour. No factual findings made by his Honour are otherwise the subject of challenge.
If the ground is to have substance, the argument – although it has not necessarily been articulated in this way – must be that the finding is contrary to the weight of the evidence or that the weight given to the evidence was insufficient to satisfy the onus prescribed by s 140 of the Evidence Act1995 (Cth) (“Evidence Act”). As May and Ainslie-Wallace JJ point out, the appellant’s written outline appears to address itself to the former assertion; oral argument on his behalf to the latter.
In circumstances where none of the factual findings made by his Honour is the subject of challenge, nothing contained in the written argument on behalf of the appellant, nor anything directed to this ground in oral argument, persuades me of error on the part of the trial Judge insofar as a challenge is made to the weight given to the evidence.
To the extent that the ground might be seen to suggest error by reference to the application of s 140(2) of the Evidence Act, the argument would appear to suggest that the error is that the evidence fell short of the standard of proof required by that section given the gravity of the finding. Once again, however, because no specific factual finding is the subject of challenge, the argument has to be that all of the (presumed correct) factual findings were, when taken together, insufficient to satisfy the standard required by that section. It was held in Neat Holdings Pty Ltd v Karajan Holdings Pty Ltd (1992) 110 ALR 449 (at 450, per Mason CJ, Brennan, Deane, Gaudron JJ):
… authoritative statements have often been made to the effect that clear or cogent or strict proof is necessary ‘where so serious a matter as fraud is to be found’. Statements to that effect should not, however, be understood as directed to the standard of proof. Rather, they should be understood as merely reflecting a conventional perception that members of our society do not ordinarily engage in fraudulent or criminal conduct and a judicial approach that a court should not lightly make a finding that, on the balance of probabilities, a party to civil litigation has been guilty of such conduct.
It is abundantly clear that the trial judge appropriately recognised, albeit implicitly, that “…the strength of the evidence necessary to establish a fact or facts on the balance of probabilities may vary according to the nature of what it is sought to be proved” (Neat at 450). The ultimate relevant finding in this case amounted to the husband not being believed. There was more than an ample evidentiary foundation for that ultimate finding and for the ultimate specific finding to which Ground 1 is directed. The ground fails.
Ground 5, in asserting that the finding there described, was “not open” to the trial Judge asserts no factual error. Nor is it asserted that relevant considerations were not considered or that irrelevant considerations were considered. No specific evidence is identified in respect of which it is argued improper weight was attached; again, as expressed and argued, the ground would appear to assert that the conclusion was contrary to the (presumed correct) factual findings and the weight attached to the totality of them.
There is no merit in Ground 5.
Bankruptcy and its Relevance – Ground 2
Given that it is accepted that the husband is not a bankrupt, and that it is not suggested that there was any evidence before the trial judge to suggest the husband was a bankrupt, had filed for bankruptcy or even that he might become the subject of a sequestration order, the intent of Ground 2 is somewhat elusive.
To the extent that the future possibility of bankruptcy is said to somehow found this ground, any such argument can quickly be rejected.
As argued, however, it appears that this ground is linked to the argument which founds Grounds 3 and 4 which deal with the injunction granted by his Honour and its “permanency”. The argument would appear to be that, if the husband is made bankrupt, he would be discharged by operation of law within a period governed by the Bankruptcy Act1966 (Cth) (“Bankruptcy Act”) and, as such, the terms of the injunction made by the trial judge run contrary to that Act’s provisions. The ground expressed in this way is also answered by reference to the matters just discussed and can similarly be rejected.
Injunction – Grounds 3 and 4
The Premise for Ground 3
As is pointed out by May and Ainslie-Wallace JJ, Ground 3, even in terms, relies upon a premise wholly contrary to the case agitated by the husband at trial. His case was that the money had been misappropriated by the wife through the agency of her father and he had neither knowledge of nor control over it.
The husband’s inability to leave the jurisdiction can, then, have nothing at all to do with his capacity to avail the wife of a remedy – his entire case is premised on the fact that he cannot do so and has been unable to do so since the misappropriation which he alleged at trial but which was firmly rejected by the trial judge. The husband cannot now rely upon a finding in respect of which he contended to the contrary at trial and which, in Ground 1 of this appeal, he asserts to be a finding in respect of which the evidence “was not sufficient enough”.
This ground, too, has no merit.
Injunction and Freedom of Movement – Ground 4
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.
The parties were agreed at trial that the totality of their assets comprised the sum of approximately $580,000 which had been transferred to Lebanon. The husband had travelled to Lebanon on three occasions since repatriating those funds to that country. At the trial, the parties were in dispute over who had disposed of those funds; the appellant maintained the respondent (through her father) had disposed of the funds, whilst the respondent maintained that the appellant was responsible. Ultimately, his Honour found:
160.The undisputed fact is that the husband was responsible for moving virtually all of the parties’ assets from Australia to Lebanon. I do not accept the husband’s version as to what happened to those assets.
The appellant’s challenge to that finding has failed on this appeal; his Honour’s finding was well open to him.
Specific statutory power is given to this Court to grant injunctions “…in aid of enforcement…” It emerges clearly from his Honour’s Reasons that this is the power upon which his Honour relied. The exercise of the power involves the exercise of a discretion informed by factors which include the appellant’s right to travel as he might desire and, specifically, the ICCPR.
His Honour’s findings at [165]-[167] of the Reasons have been quoted by May and Ainslie-Wallace JJ. The appellant’s freedom to travel was, plainly, a relevant consideration in his Honour’s exercise of the power pursuant to s 114. However, based on his Honour’s finding as to the disposal of the totality of the parties’ assets by the appellant (the challenge to which has failed in this Court) and the absence of evidence proffered by the appellant regarding the availability of other assets to meet his obligations under the final property orders (which, it ought be noted, were agreed to by the parties), that consideration was plainly outweighed by the “prospect that the [final property orders] would be defeated … if travel were not restrained.”
As the transcript of the trial proceedings makes plain, the appellant’s counsel was invited by his Honour to make submissions as to why an order pursuant to s 114(3) restraining the appellant from leaving Australia as a means of enforcing the final orders ought not be made. The appellant’s counsel submitted that, by virtue of s 81, the Court does not have the power to make an “open-ended” order pursuant to s 114 restraining a person from leaving Australia.
The statutory mandate in s 81 is not absolute; it is conditioned by a consideration of what is “practicable”. Of itself, the section does not preclude an order of the type made; it is an important factor which is also to be considered.
Further, and importantly, no submissions were made in respect of the appellant’s rights pursuant to the ICCPR; that contention is, it seems, raised for the first time on appeal.
In my view, his Honour was plainly correct in being satisfied that the “heavy onus” that there was “a likelihood that [she] [would] be denied a remedy if the [appellant’s] freedom to leave the jurisdiction is not limited or suspended” had been met (Anstis at [38]).
In my view, no error has been demonstrated.
There is, then, no merit in Ground 4.
CONCLUSION
I agree that the appeal should be dismissed.
I certify that the preceding sixty eight (68) paragraphs are a true copy of the reasons for judgment of the Honourable Full Court (May, Ainslie-Wallace & Murphy JJ) delivered on 9 October 2013.
Associate:
Date: 9 October 2013
50
2
3