RK and SK (aka Kaleb and Kaleb) (No. 2)

[2007] FamCA 1047

FAMILY COURT OF AUSTRALIA

RK & SK (AKA KALEB & KALEB) (NO. 2) [2007] FamCA 1047

FAMILY LAW – PROPERTY – Application by husband for leave to institute property proceedings pursuant to s118 of the Family Law Act – Application repetitive and same form as multiple earlier applications – Leave refused and application dismissed.

APPLICANT: MR KALEB

RESPONDENT: MRS KALEB

FILE NUMBER: MLF 10919 of 1998

DATE DELIVERED: 29 August 2007

PLACE DELIVERED: Melbourne

PLACE HEARD: Melbourne

JUDGMENT OF: Guest J

HEARING DATE: 29 August 2007

REPRESENTATION

COUNSEL FOR THE APPLICANT:

SOLICITOR FOR THE APPLICANT:

COUNSEL FOR THE RESPONDENT:

SOLICITOR FOR THE RESPONDENT:

Orders

1. That the Form 2 Application in a Case filed by the husband on 31 July 2007 be dismissed.

IT IS DIRECTED

1. That the ex tempore judgment delivered this day be transcribed and when transcribed a copy placed on the court file and made available to the parties.

IT IS NOTED IN CONNECTION WITH THESE ORDERS that the judgment of the Honourable Justice Guest delivered this day will for all publication and reporting purposes be referred to as Kaleb & Kaleb.

FAMILY COURT OF AUSTRALIA AT MELBOURNE

FILE NUMBER: MLF 10919  of 1998

Mr Kaleb

Applicant

And

Mrs Kaleb

Respondent

REASONS FOR JUDGMENT

1. I have before me an application brought by the husband filed on 31 July 2007 in which he seeks the following orders:

   “1.I seek leave of the court based on the following evidence and my affidavit sworn on 30/7/2007 to file my further application Please.

   A.I and the wife remarried based on the matrimonial Law of Iran which is attached.

   B.We signed a marriage contract which is attached, in that contract, by our mutual agreement, the marriage portion for the wife was fixed:  500 000 Rials (Iranian currency). 

   C.The wife by her own application for her asset settlement applied in Iran then obtained an order and received whatever she was entitled for her asset settlement; In this respect a certificate from the judiciary of Iran was issued which was attached.

   D.Therefore, the trial Judge Brown J. had not jurisdiction over such case to make order I pay another asset settlement in Australia which her Honour did illegally and lawlessly.

   2.I seek order my property that wife given to the wife with legal cost, my losses and compensation to be returned please, the list is attached.”

2. In support of his application there are two affidavits.  I have read them both and I am fully informed of the basis upon which he has made this application and seized with all material necessary in order to accord due process to the husband.

3. The husband is required to seek leave by reason of an order made on 8 April 2000, as varied on 15 March 2000, he remains restrained from initiating any proceedings under the Family Law Act 1975 without leave of the court.

4. The husband had earlier filed an Application for leave which was heard by Dessau J on 10 April 2007.  His application on that occasion was couched in the following terms:

   “On the basis of my affidavit sworn 10/4/ 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.”

5. Her Honour dismissed the application.  The husband appealed to the Full Court which dealt with the matter and delivered its judgment on 26 July 2007.  In its judgment, the Court of Appeal helpfully summarised the history of the proceedings as follows:

   “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.

4.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). 

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

6.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.

7.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.

8.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. 

9.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 [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.

…

11.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.

12.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.”

1. The issues the husband now seeks to agitate correspond both in content and purpose those he has already brought earlier before the court over some several years and founded upon his grievance arising from the judgment Brown J delivered on 20 December 1999.  Nothing of substance has changed to warrant leave being granted as sought. 

2. I have read the husband's two affidavits which are repetitive of past grievances aired by him and demonstrated in fact and in law to be without foundation.  In his submissions before the Full Court on 26 July 2007, the husband said:

   “2. Many times since that order 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 to one asset settlement, then such judges will provide me justice.”

3. And so the cycle continues.  Nothing has changed.  The husband maintains his claim of gross injustice perpetrated upon him which is best seen from the following paragraphs of his affidavit of 21 August 2007 in which he deposed as follows: 

   “1.Four Judges due to being racialist and hostile towards Islam comprising of the trial Judge Brown J and the appellate judges: Kay, Finn and Holden JJ were reluctant to accept that the wife’s asset settlement by her own application based on the matrimonial law of Iran which is from the Islamic law and the terms of her marriage contract was done in Iran before.

   2.Therefore, four abovenamed Judges imposed a massive injustice on me to put another asset settlement based on the matrimonial of Australia.  My case was and is as to why and on what reason I had to pay twice asset settlement and on which law of Australia provides right for the wife to receive twice asset settlement, one in Iran then another in Australia?

   3.Many times I filed my application for removal of massive injustice that was imposed on me since 1999.  Such applications that every time I failed, first was put before one judge that was powerless to act independently so relied another’s judgments and dismissed my application.

   4.It is obvious, one judge had not power to remove the massive injustice that was imposed on me by four named judges.  In such wrong proceedings the court provided evidence against me that many Judges considered my applications.  One of the four named Judges that is racialist and having hostility and animosity towards Islam that imposed massive injustice on me: Justice Kay have become conductor to orchestrate dismissing all my appeals many times since 1999.  Every time his Honour recommended two judges with himself to dismiss my appeal without giving any reason as to why the wife could apply in two countries and on which Australian law she could receive twice asset settlement and why the wife by fraud and suppression of evidence could receive twice asset settlement?

   5.Almost eight hundred (800) pages of judgments all out of above subject by four named judges and twenty four (24) other judges who for the sake of prestige of four named judges by the conduct of Kay J have became united against me and cover up all the illegal and lawless action which made order I pay twice asset settlement to the wife.  The name of twenty four above said judges are as follows:

   1 - Nicholson. 2 - Mullan. 3 - Frederico. 4 - Coleman. 5 - Colier. 6 Carter. 7 - Smither. 8 - Watt. 9 - Morgan. 10 - Wilczek.
   11 - Rowlands. 12 - Mushin. 13 - Guest. 14 - Joske. 15 - May.
   16 - Young. 17 - Ellis. 18 - O’Ryan. 19 - Carmody. 20 - Warnick. 21 - Bell. 22 - Bryant. 23 - Bennett. 24 - Dessau.

   …”

4. The husband has not made out a ground for leave to proceed with his application filed on 31 July 2007 and will accordingly be dismissed.  I will direct that a copy of my ex tempore judgment be transcribed, placed on the court file and made available to him.

I certify that the preceding nine (9) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Guest.

Associate: 

Date:  7 September 2007.