Rahman & Rahman - [2013] FamCAFC 162

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, 3^rd sess, 183^rd plen mtg, UN Doc A/810 (10 December 1948).

Anstis & Anstis (1999) 26 Fam LR 548
Black & Kellner (1992) FLC 92-287
Brown & Brown (2007) FLC 93-316
Khademollah & Khademollah (2000) FLC 93-050
Minister for Immigration and Ethnic Affairs v Teoh (1995) 183 CLR 273
Neat Holdings Pty Ltd v Karajan Holdings Pty Ltd (1992) 110 ALR 449
Porto & Porto (No 3) (2010) 45 Fam LR 101
Talacko v Talacko (2010)

APPELLANT:

Mr Rahman

RESPONDENT:

Ms Rahman

APPEAL NUMBER:

2012

FILE NUMBER:

SYF

4548

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…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

Continue reading Rahman & Rahman

Details

AGLC: RAHMAN & RAHMAN [2013] FamCAFC 162
Case: [2013] FamCAFC 162
Decision Date: 9 October 2013

CaseChat Overview and Summary

The appeal in Rahman & Rahman was brought by the husband against property and restraint orders made by the Family Court. The husband argued that the trial judge erred in finding him to be of low credit and in making a restraint order that prevented him from leaving the jurisdiction until a payment to his wife was made. The husband also contended that the trial judge failed to consider his human rights and the Bankruptcy Act 1966 (Cth) when making the restraint order.

The court considered whether the trial judge's finding of low credit was justified and whether the restraint order was properly made. The court found that the evidence before the trial judge was sufficient to support the adverse finding of credit and that no error had been demonstrated. Regarding the restraint order, the court held that the trial judge did not err in making the order as the husband had transferred the majority of the parties' assets overseas and had not provided evidence of any other money available to satisfy the order. The court also found that the trial judge had not erred by not considering the Bankruptcy Act 1966 (Cth) as the issue of bankruptcy had not been raised before the trial judge.

The court dismissed the husband's appeal and ordered him to pay the wife's costs of and incidental to the appeal on a party and party basis to be agreed or assessed. The court found that the trial judge's orders were properly made and that the husband had not demonstrated any error on the part of the trial judge. The husband's appeal was dismissed, and he was ordered to pay the wife's costs of the appeal.

Orders

Orders of the court

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.

Background

Background to the litigation

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Evidence

Evidence Before The Court

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Decision

Reasons for decision

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Ratio Decidendi

Legal Principle Established

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