Rahman & Rahman (No 2)

[2011] FamCA 848

FAMILY COURT OF AUSTRALIA

RAHMAN & RAHMAN (NO 2) [2011] FamCA 848

FAMILY LAW - PROPERTY – interim

Family Law Act (Cth)

APPLICANT: Ms Rahman

RESPONDENT: Mr Rahman

FILE NUMBER: SYF 4548 of 2006

DATE DELIVERED: 2 November 2011

PLACE DELIVERED: Sydney

PLACE HEARD: Sydney

JUDGMENT OF: Watts J

HEARING DATE: 12 October 2011

REPRESENTATION

COUNSEL FOR THE APPLICANT: Mr Webb

SOLICITOR FOR THE APPLICANT: Jordan Djunda

COUNSEL FOR THE RESPONDENT: Mr Levitt

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

Orders

Orders made 12.10.11

1. Leave granted to the husband to file in court an Application in a Case.

2. Orders 1 and 2 as sought in the Application filed by the husband on 12 October 2011 be dismissed.

3. The balance of the application be adjourned, for further directions, to the end of the hearing.

It is noted that publication of this judgment under the pseudonym Rahman & Rahman (No 2) 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

1. The husband has sought to file an Application in a Case in court.  The first two orders sought are as follows:

   1.Liberty to serve short notice of this application;

   2.That this Application be made returnable on 12 October 2011 before His Honour Justice Watts.

2. The intent of the remaining orders sought is to enable the husband to seek to proceed with an application to join the wife’s father as a party to the substantive proceedings which are listed for final hearing before me today.  The husband intended to ask the court to make orders under s 90AE and s 90AF Family Law Act. The basis of the application by the husband was that he asserts the wife’s father was involved in actions that had the effect of intentionally depriving the husband of two amounts of money totalling $580,000. The husband also asserts, as part of his case, that the wife’s father either acted alone or in concert with the wife to defraud the husband of those amounts. The orders sought are orders in personam against the wife’s father for repayment of that sum and for the wife’s father to be restrained from leaving Australia and for him to surrender his passport and be restrained from applying for another passport pending the determination of the claim by the husband against the father. 

3. The proceedings between the husband and wife have had an unfortunate history which included the aborting of a hearing before Judicial Registrar Loughnan on the occasion of his appointment as a judge and a prior vacation of hearing dates before me.

4. The matter has been before me for a number of pre-trial events. On 21 February 2011 an application by the wife that her father give evidence by electronic means was successfully opposed by the husband and I made an order dismissing the wife’s application that her father give evidence by electronic means. On 23 February 2011 I set the matter down for final hearing commencing 6 June 2011 and noted that the husband required the wife’s father to be personally present for cross examination at the hearing and the wife had indicated that those arrangements would be made. 

5. There were subsequent proceedings before me on 30 May 2011 which were necessitated by the fact that although reasonable attempts had been made to arrange the appropriate immigration clearances for the wife’s father to come to Australia, those attempts had not been successful in arranging for the wife’s father to be here in time for the hearing on 6 June. Consequentially the dates that were scheduled for the hearing were vacated and the matter was rescheduled for final hearing commencing today.

6. It can be seen that the husband was well aware since February 2011 that the wife’s father was going to personally attend Australia to give evidence in this case. The husband can be taken to have known that it would be of a considerable forensic disadvantage to the wife if her father did not attend to give evidence that met the allegations made by the husband, particularly in detail in his affidavit filed 15 July 2010.

7. Although it was not an agreed fact as to precisely when the husband’s Application in a Case was served on the wife, it was not earlier than some time late on Monday. The wife’s lawyers asserted they did not receive notification until yesterday (Tuesday). That issue was not resolved before me but it does not matter. I accept from counsel for the wife that at the time that he had a conference with the wife’s father (a witness in the wife’s case) on Monday, he was not aware, nor were his instructing solicitors, of the application which the husband now seeks leave to make against the wife’s father.

8. Counsel for the husband concedes that there has been no service of the application upon the wife’s father. Counsel for the husband asserts that an envelope with the application enclosed was left at the offices of the solicitors for the wife (at a time not specified but I take it no earlier than late on Monday night) addressed to the wife’s father. Counsel for the wife says, and I accept, that they have no instructions to act for the wife’s father and I accept there may well be a conflict of interest arise if the wife’s solicitor did so.

9. The husband says that he did not wish to give the wife’s father notice that the application was going to be made because he feared that the wife’s father would then not come to Australia. I do not accept that that is a valid reason for making the application so late.

10. The wife’s father has not been served with this application and so far as I know, has no notice that it is being made.

11. Counsel for the husband conceded that the effect of the application, if successful, would be to abort the trial between the husband and wife which was scheduled to start now. Counsel for the husband argued that that was appropriate given that if I found the husband’s version to be a preferable one, then some order should be made against the wife’s father for him to repatriate $580,000 to Australia and to retain the wife’s father in Australia until that happened. 

12. Be that as it may, the husband has taken the deliberate course of delaying the making of this application today when it could have been made at an earlier time (as early as February 2011). If that had happened, the wife’s father would have had an opportunity to know the application had been made and to seek legal advice to respond. 

13. In those circumstances, it is not appropriate to make an order which will have the inevitable effect of aborting the substantial hearing.

14. I accordingly dismiss the application for leave to have the application dealt with at the commencement of this hearing.

15. I adjourn the balance of the application to consider any procedural directions to the end of the substantive hearing.

I certify that the preceding fifteen (15) are a true copy of the ex tempore reasons for judgment of the Honourable Justice Watts delivered on 31 October 2011.

Associate: 

Date: 2.11.11