RK and SK

[2007] FamCA 744

FAMILY COURT OF AUSTRALIA

RK & SK [2007] FamCA 744

FAMILY LAW - APPEAL – LEAVE TO - Vexatious litigant – Applicant has made successive attempts to appeal property settlement orders made 20 December 1999.  This has involved numerous failed applications for leave, appeals of dismissals of such applications, and applications for special leave to the High Court – The current application again sought the opportunity to re-litigate issues which have been finally determined by the original trial judge and the Full Court and does not raise any new issues – Application dismissed

Family Law Act 1975 (Cth)

APPLICANT: RK

RESPONDENT: SK

FILE NUMBER: MLF 10919 of 1998

APPEAL NUMBER: SA 44 of 2007

DATE DELIVERED: 26 July 2007

PLACE DELIVERED: Melbourne

PLACE HEARD: Melbourne

JUDGMENT OF: KAY, COLEMAN & YOUNG JJ

HEARING DATE: BY WAY OF WRITTEN SUBMISSIONS

LOWER COURT JURISDICTION: Family Court of Australia

LOWER COURT JUDGMENT DATE: 9 May 2007

LOWER COURT MNC: [2007] FamCa 443

REPRESENTATION

COUNSEL FOR THE APPLICANT: IN PERSON

Orders

1. The application filed 15 May 2007 is dismissed.

IT IS NOTED IN CONNECTION WITH THESE ORDERS that the judgment of the Full Court delivered this day will for all publication and reporting purposes be referred to as RK and SK.

THE FULL COURT OF THE FAMILY COURT OF AUSTRALIA AT MELBOURNE

Appeal Number: SA 44 of 2007
File Number: MLF 10919 of 1998

RK

Applicant

And

SK

Respondent

REASONS FOR JUDGMENT

1. This is an application for leave to appeal against an order made by Dessau J on 9 May 2007 dismissing an application filed by the applicant husband on 10 April 2007.

2. The husband is required to seek leave because, by operation of an order made 8 April 2000 as varied on 15 March 2001 he remains restrained from initiating any proceeding under the Family Law Act 1975 (Cth) (“the Act”) without leave of the court.

3. On 20 December 1999 Brown J made orders at the conclusion of contested property proceedings.  Those orders provided (inter alia) that:

·    The husband transfer his interest in the former matrimonial home to the wife;

·    The husband to pay the wife $96,796;

·    Each party to retain the chattels in their respective possession;

·    The husband be restrained from leaving Australia or dealing with any real or personal property of the parties including certain named bank accounts and real estate identified in Iran pending payment of outstanding moneys under the judgment; and

·    The husband’s Australian passport remain in the possession of the Court until payment of all the monies due under the orders.

1. An appeal by the husband against those orders was partly successful in that the sum payable to the wife was reduced by the Full Court to $76,800 on 5 September 2000 (per Finn, Kay and Holden JJ). 

2. The husband sought special leave to appeal to the High Court but that leave was refused on 15 February 2002.  

3. Since the refusal by the High Court the husband has made a succession of applications for leave to bring proceedings to effectively reverse the orders made by Brown J at the original property trial. As noted above, the husband is required to seek that leave because, by operation of an order made 8 April 2000 as varied on 15 March 2001, he remains restrained from initiating any proceedings under the Act without leave of the Court.

4. Each time leave has been refused the husband has appealed against the refusal of the leave.  Successive Full Courts have dismissed his applications for leave to appeal as follows:

   ·     An appeal against orders made by Wilzcek J was dismissed by Rowlands, Kay and Coleman JJ on 21 June 2002;

   ·     An application seeking a certificate to appeal to the High Court under s 95(b) was dismissed by Finn, Holden and Mushin JJ on 26 September 2002;  

   ·     An application for leave to appeal against orders made by Joske J on 28 November 2002 was dismissed by Kay, May and Young JJ on 12 June 2003;

   ·     An application for leave to appeal against orders made by Mushin J on 3 November 2003 dismissing a similar application was dismissed by Kay, Coleman and Carmody JJ on the 5 February 2004;

   ·     An application for leave to appeal against orders made by Brown J on 30 January 2004 was dismissed by Kay, Warnick and Young JJ on 17 May 2004;

   ·     An application for leave to appeal against an order of Kay J dated 10 December 2004 dismissing an application filed on 6 December 2004 to review a decision of the Appeal Registrar (Melbourne) was dismissed by Holden, Warnick and May JJ on 29 July 2005; and

   ·     An application for leave to appeal against orders made by Bennett J on 1 May 2006 dismissing an application to reopen the matter was dismissed by Kay, Warnick and May JJ on 4 July 2006.

   Further, on 8 February 2007 the High Court refused the husband special leave to appeal against the orders made by the Full Court on 4 July 2006.

5. On 10 April 2007 the husband filed yet another application seeking leave to bring proceedings to set aside the orders made by Brown J on 20 December 1999. 

6. Having identified that the relief sought by the husband was identical to the relief sought in the previous application before Bennett J, Dessau J said:

   5. It seems that [RK’s] 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 [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.

7. The husband’s submissions in support of his application for leave to appeal against the orders made by Dessau J dismissing his application assert the following:

   1.    I seek leave of the Full Court to appeal on the following basis please:  I and the wife we both were born in Iran, then according to the Iranian matrimonial laws which is from the Islamic laws we married together.  The marriage portion of the wife by our mutual agreement was fixed in our marriage contract (pre nuptial agreement) for 500,000 Rials (Iranian currency).  The wife by her own application for her asset settlement applied in Iran, then by the calculation rate of inflation she had obtained an order almost seventy (70) times more than the initial marriage portion for 33,679,600 Rials plus 1,684,000 Rials as governmental tax and duties.  Then she applied for enforcement of that order and received her asset settlement completed in Iran…Therefore, the trail judge Justice Brown had no jurisdiction over the wife’s asset settlement which was done in Iran before to make order.  I pay once again asset settlement based on the Australian matrimonial law in Australia.

   2.    Many times since that order was made on 20 December 1999  I appealed against the order, always my appeal was: what is the reason that I had to pay twice asset settlement?  All the judgments that were delivered, were out of above subject and my appeals were not finalised, even this time Justice Dessau on 9 May 2007 did not deal with my application as I said above.  Her Honour on the excuse that previously other judges refused my application without giving her own judgment, her Honour dismissed my application.

   3.    Therefore, my cycle of appeals will be continued, and by this way I shall keep my case current in the Full Court and the High Court, in the hope that God willing one day my case will be put before responsible, qualified and experienced appellate judges who could understand that the wife is entitled only for one asset settlement, then such judges will provide me justice…

8. The issues concerning the interaction between the Iranian proceedings and the Australian proceedings were fully canvassed in the judgment of Brown J of 20 December 1999 and by the various members of the Full Court in its judgment of 5 September 2000.  In that judgment the Full Court held that notwithstanding the existence of the Iranian proceedings and the Iranian marriage contract, it was open to Brown J to have retained jurisdiction in the Australian proceedings and to make the orders that she did.  The High Court refused special leave to appeal against that Full Court judgment on 15 February 2002.

9. The application brought before Dessau J amounted to no more than an attempt to relitigate issues that had been finally determined by the original trial judge and the Full Court.  A series of subsequent applications had been refused both at first instance, on appeal to the Full Court and most recently by the further refusal of special leave by the High Court of Australia.  The material presented to Dessau J raised no issue that had not already been fully canvassed.  We detect no error in the manner in which her Honour determined the matter and accordingly this application for leave to appeal must fail.

10. The formal order of the Court is that the application for leave to appeal filed 15 May 2007 is dismissed.

I certify that the preceding Thirteen (13) paragraphs are a true copy of the reasons for judgment of the Honourable Full Court

Associate: 

Date:  26 July 2007