RK and SK (aka Kaleb and Kaleb)

[2007] FamCA 443

FAMILY COURT OF AUSTRALIA

RK & SK (AKA KALEB & KALEB) [2007] FamCA 443

FAMILY LAW - PROPERTY - Application to set aside orders

APPLICANT: MR KALEB

RESPONDENT: MRS KALEB

FILE NUMBER: MLF 10919 of 1998

DATE DELIVERED: 9 May 2007

PLACE DELIVERED: Melbourne

JUDGMENT OF: Dessau J

HEARING DATE: 9 May 2007

REPRESENTATION

COUNSEL FOR THE APPLICANT: In person

Orders

1. That the applicant's application filed 10 April 2007 seeking leave to proceed with an application in relation to the return of property shall be and is hereby dismissed.

FAMILY COURT OF AUSTRALIA AT MELBOURNE

FILE NUMBER: MLF 10919 of 1998

MR KALEB

Applicant

And

MRS KALEB

Respondent

REASONS FOR JUDGMENT

1. The applicant has been litigating property issues in this court for nine years.  He is aggrieved that property orders were made by Brown J on 20 December 1999 whereby the wife received a property settlement.  The applicant has consistently argued that there was a marriage contract and property settlement in Iran, that Australian law does not apply, and that this court has no jurisdiction to make property orders.

2. In briefest summary, which is all I can achieve in the course of a busy duty list, the applicant appealed to the Full Court where Brown J's right to make orders was upheld.  He sought special leave from the High Court and that special leave application was refused on 15 February 2002.  There were then various other applications and enforcement proceedings.

3. On 28 April 2000, Carter J ordered that the applicant husband be restrained from instituting further proceedings without the prior leave of the court.  Accordingly, the husband’s present application filed 10 April 2007 and supported by his affidavit filed on the same day is properly brought on an ex parte basis.  His application today is expressed as follows:

   I seek leave of the court to file it, please on the basis of my affidavit sworn 10 April 2007, the wife's asset settlement was done in Iran before.  Therefore, the properties that in Australia according to the list that by the trial Judge Justice Brown detailed them in paragraph 43 of 1 February 2001 judgment which is attached:  I seek order all of them to be returned and delivered to me with the legal cost and my losses, please.

   His affidavit in support refers to the history, the Islamic laws of Iran, and refers to parts of the Full Court judgment dealing with Brown J's original orders.

4. I see from the court file that the husband sought leave from Bennett J on 1 May 2006 to file and serve an application for the return of assets, being the former matrimonial home at D, two kilograms of gold, one kilogram of gold jewellery, 20 Persian carpets, chattels and personal possessions in the former matrimonial home, and reimbursement of $18,200 for a car sold by the wife.  Those are the precise assets that he seeks to have the court deal with if leave is granted under today’s ex parte application.  Bennett J refused leave for him to proceed and dismissed his application on 1 May 2006.  The husband then applied for leave to appeal that decision to the Full Court of the Family Court of Australia.  Leave was refused.  He applied to the High Court for special leave.  His application was refused on 8 February 2007.  He has tendered the transcript today, as well as a letter he has recently sent to the Prime Minister of Australia.

5. It seems that the husband 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 the husband’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.

I certify that the preceding five (5) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Dessau

Associate: 

Date:  9 May 2007

IT IS NOTED that this judgment for all publication and reporting purposes be referred to as RK & SK