RK and SK

[2008] FamCA 465

FAMILY COURT OF AUSTRALIA

RK & SK [2008] FamCA 465

FAMILY LAW – PROPERTY – Application to set aside orders

APPLICANT: MR RK

RESPONDENT: MRS SK

FILE NUMBER: MLC 4544 of 2008

DATE DELIVERED: 4 June 2008

PLACE DELIVERED: Melbourne

JUDGMENT OF: Dessau J

HEARING DATE: 4 June 2008

REPRESENTATION

FOR THE APPLICANT: In person

FOR THE RESPONDENT:

Orders

1. That the husband’s application filed 20 May 2008 for leave to institute proceedings in this Court shall be and is hereby dismissed.

2. That my reasons for judgment shall be transcribed and a copy made available to the parties.

IT IS NOTED that publication of this judgment under the pseudonym RK & SK is approved pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth).

FAMILY COURT OF AUSTRALIA AT MELBOURNE

FILE NUMBER: MLC 4544 of 2008

MR RK

Applicant

And

MRS SK

Respondent

REASONS FOR JUDGMENT

1. Mr RK seeks leave to institute proceedings.  Leave is required pursuant to an order of 8 April 2000.  He is restrained from instituting proceedings under the Family Law Act without it. 

2. This ex-parte leave application was filed on 20 May 2008 and is supported by an affidavit filed on the same day.  His application is as follows:

   1. I seek leave to issue further application. I request permission of the court (the Honourable trial Judge Justice Brown) for review of my case on the basis that the wife’s asset settlement by her own application according to the matrimonial law of Iran which is from the Islamic law and the terms of her marriage contract (pre nuptial agreement) was done in Iran before but the wife by fraud did not disclose it to the court even by conspiracy between her and the translator, the terms of her marriage contract was not translated then with such suppression of evidence it was submitted to the trial Judge. In addition the wife by fraud failed to disclose other things which are listed in my affidavit sworn on 20 May 2008 for the support of this application. Therefore, my case is relevant based s 79A of the Act.

   2         I seek order for the return of my property that for the second times were given to the wife which are listed by the trial Judge in Paragraph 43 of 1/2/2001 Judgment that is attached, with legal costs, my losses and compensation please.

3. The essence of the application seems to be for leave to file an application pursuant to s 79A of the Act based on “suppression of evidence”. Although Mr RK refers to Brown J’s orders of 1 February 2001, it seems he is apparently seeking to set aside the orders made by Brown J on 20 December 1999, after a defended hearing. The 1 February 2001 proceedings were contravention proceedings, pursuant to which Mr RK was imprisoned. A reference to paragraph 43 was to an oral application made by him, dealt with and dismissed by Brown J.

4. The last judgment on the court file is that of Guest J on 29 August 2007.  His Honour sets out in that judgment the very long history of the proceedings in this court and the applications brought by Mr RK. 

5. I am concerned that although in this application Mr RK refers to s 79A of the Act, this application does not in fact differ from previous applications in any sufficient or substantial way. I note that when I heard another application by Mr RK for leave to file proceedings, on 10 April 2007, I noted then that although his application did not specifically refer to it, he appeared to be saying that his application was to set aside Brown J’s orders pursuant to s 79A of the Act. That part of my judgment is quoted by Guest J in his recent judgment as follows:

   5. It seems that Mr [RK] is seeking to distinguish his current application from the previous applications, to satisfy me that it is not just a repeat of his previously unsuccessful attempts to upset Brown J’s orders. I think he is saying that this time his application is for the setting aside of Brown J’s orders, pursuant to s 79A of the Family Law Act. His application does not actually refer to that section. Although that in itself is not fatal to his application, I note there is nothing in his supporting affidavit that raises any relevant ground under s 79A of the Act or, for that matter, that goes beyond precisely what he appears to have argued before the case was decided by Brown J and in the applications since then to which I have referred. There is nothing in Mr [RK’s] material that appears to distinguish the application in substance from the application made before Bennett J on 1 May 2006. His application for leave must fail.

6. Most of Mr RK’s affidavit that I have today continues to “argue the toss” on the trial Judge’s approach in hearing the case and determining a property settlement, and as to the Full Court’s determination of his appeal (see paragraphs 1-11). 

7. In paragraphs 12-15 he complains about events, documents and transactions that again pre-date the 2000 hearing, and it is apparent from paragraph 13 that the same issues were aired before the Full Court.  There have been numerous Full Court hearings.  Logically, the Full Court referred to at paragraph 13 is the one following Her Honour’s final property orders.

8. In any event, it is only at paragraph 16, the last paragraph of his affidavit, that Mr RK referred to the “fraud” upon which a s 79A application would be based. He swore:

   The wife by fraud did not disclose all the facts that I detailed in this affidavit, she was applicant for her asset settlement first in Iran then in Australia.  She by fraud did not disclose that her asset settlement was done in Iran before.  In addition by conspiracy between the wife and the translator the terms of her marriage contract was not translated then without detailing those terms in her marriage contract (pre-nuptial agreement) was submitted to the trial judge.

9. It is clear that the marriage contract, the asset settlement in Iran, the jurisdiction of the Australian versus the Iranian court, and the husband’s arguments about those issues, have been front and centre of not only the original litigation, but his various endeavours since then to upset Brown J’s orders. Nothing sufficiently new or different is raised in this application, despite a reference to s 79A of the Family Law Act, to warrant leave being granted.

10. Finally, at the end of his affidavit, Mr RK asserts:

    The High Court of Australia accepted my case to be acted based on s 79A of the Act. Date of judgment at 9.39 am […] February 2007.

11. I note from Guest J’s judgment that in February 2007 the High Court refused the husband special leave to appeal against the orders of the Full Court on 4 July 2006. Whether or not the High Court made reference to a s 79A application on the husband’s part, I am not satisfied that it could be said that the High Court “accepted [Mr RK’s] case to be acted based on s 79A of the Act.” I recall that as the very argument raised by Mr RK when he was last before me in April 2007. In any event, for the reasons I have given this application continues to traverse previous material and leave to proceed shall not be granted.

I certify that the preceding eleven (11) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Dessau

Associate:     

Date:  4 June 2008