RK & SK

[2006] FamCA 563

[2006] FamCA 563

FAMILY LAW ACT 1975

IN THE FULL COURT       
OF THE FAMILY COURT OF AUSTRALIA                 Appeal No SA32L of 2006
AT MELBOURNE  File No MLF10919 of 1998

BETWEEN:

RK
Applicant Husband
- and -

SK
Respondent Wife

REASONS FOR JUDGMENT

CORAM:  Kay, Warnick & May JJ
DATE OF HEARING:                 By way of written submissions
DATE OF JUDGMENT:             4 July 2006

SUBMISSIONS RECEIVED FROM:

The Applicant Husband in person.

RK & SK
SA32L of 2006
CORAM:  Kay, Warnick & May JJ
DATE OF HEARING:         By way of written submissions
DATE OF JUDGMENT:     4 July 2006

Catchwords:           APPEALS – Successive applications for leave to bring proceedings – Vexatious litigant continuing to seek further alteration to property interests after settlement in 2000 – All rights to appeal exhausted – Trial judge held the Court has no power to make further orders absent a successful s 79A application – No realistic prospect of success – No basis for granting leave to appeal – Trial judgment upheld.

1. This is an application for leave to appeal against orders made by Bennett J on 1 May 2006 in the following terms:

“1.That I dismiss the husband’s application filed 29 March 2006 which sought leave to institute proceedings against the wife for a transfer back to him of the real property [former matrimonial home], 2 Kilograms of gold, a kilogram of gold jewellery, 20 Persian carpets and that the wife cause a caveat to be withdrawn, that the wife pay the husband $5,300 by way of reimbursement for the cost of a transcript to appeal and that the wife also deliver to the husband documents and furniture and chattels which were situate in the former matrimonial home the latter said to have a value of approximately $18,000.

2.That to the extent that it may be necessary this matter be removed from the active pending cases list maintained by the court.”

1. 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;

·    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 a Full Court to $76,800 on 5 September 2000 (cor Finn, Kay and Holden JJ). 

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

1. 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.  He 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 Family Law Act (Cth) 1975 without leave of the Court.

1. 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

·    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 the Full Court (Kay, May and Young JJ) on 12 June 2003;

·    An application by the husband for leave to appeal against orders made by Mushin J on 3 November 2003 dismissing a similar application was dismissed by the Full Court (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 the Full Court (Kay, Warnick & Young JJ) on 17 May 2004;

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

1. The application that was dismissed by Bennett J was filed on 29 March 2006 and supported by an affidavit sworn the same day.  In dismissing the application her Honour said:

“10.On 15 February 2002 the High Court of Australia refused the husband’s application for leave to appeal against the Full Court’s decision of 5 September 2000.  It is therefore clear to me in this case that the husband has exhausted all of his rights of appeal or review in relation to the decision made by Brown J on 20 December 1999. 

11.It is also clear to me that, absent Her Honour’s decision being set aside or successfully appealed, the court does not retain any power to make further orders in relation to property of the parties to the marriage.  In particular, I referred the husband to the recent case of Hickey and Hickey v The Attorney General for the Commonwealth of Australia (2003) FLC 93-143, which confirmed earlier cases to the effect that the exercise by this court of its jurisdiction to alter property interests is a ‘once and for all proposition’. Alteration of property interests is not an issue that can be re-visited in the absence of s.79A being invoked or an appeal.

12.The husband in this case does not bring his application pursuant to s.79A and, as I have said, the rights of appeal are exhausted.

13.As far as it can be gleaned from the husband’s application, it appears that the husband wants further orders in relation to property.  For reasons which I have already dealt with I am satisfied that the court does not have jurisdiction to make those orders.  It follows that I am not satisfied that there are prima facie grounds for the application. 

14.The husband has not satisfied me that he has a reasonable or even arguable basis for the court to make the orders he seeks.  I do not see that there is any realistic prospect of the husband being successful on his proposed application.  Accordingly, I will not grant the husband permission or leave to file a further application.” 

1. The application before Bennett J sought the following:

“I seek leave of the court: the trial Judge Justice Brown to file my further application based on reasons and evidence detailed in my affidavit sworn on 29 March 2006.  The orders that I seek are listed in paragraph 43 of 1 February 2001 by Justice Brown which is enclosed:”

[Par 43 read  “In respect of the oral application for leave to file an application seeking the orders set out in paragraph (1) to (8) (which I accept the husband is making) I must look at the orders sought.  He seeks an order that the [former matrimonial home] be returned and transferred to him, that 2 kilograms of gold and a kilogram of gold jewellery be returned and delivered to him, that 20 Persian carpets be returned and delivered to him, that Legal Aid costs be either withdrawn or that the Legal Aid Commission withdraw the caveat on the property, that he be paid $5300 for transcript and photocopies for the Appeal Books, that the chattels and furniture in the former matrimonial home plus personal possessions be returned to him, that he be paid $18,200 for a car sold by the wife, and that he get back a number of documents (which he set out in an earlier application) which he needs for his case…”]

1. The affidavit filed in support of that application on 29 March 2006 sought to re-agitate the very issues that were the subject matter of the original judgment and the successive appeals both to the Full Court of the Family Court of Australia and to the High Court.

1. In its judgment of 5 February 2004 as repeated by the Full Court on 17 May 2004, absent a successful application under s 79A of the Family Law Act (Cth) 1975 the issues decided by Brown J in 1999 as altered by the Full Court in 2000 must now be considered to be finally determined. We see no error of approach by Bennett J in her stated view that the Court did not retain any power to make any further orders in relation to the property of the parties to the marriage absent a successful s 79A application.

1. The material that the applicant seeks to rely upon in support of his application for leave to appeal against the orders made by Bennett J consists of a further attempt to revisit the jurisdictional issues dealt with by Brown J and confirmed by the Full Court that enabled the Australian Court to make orders notwithstanding that the matter had been the subject of litigation in Iran.  The affidavit also seeks to urge the Court to revisit the findings made by the trial Judge concerning the extent of the parties’ assets, the extent to which each party had made contribution to them, and the justice of an outcome that saw the wife obtain orders that the husband perceived were grossly unfair.  Nothing in the material filed on behalf of the applicant persuades us that Bennett J erred in dismissing the application filed by the husband on 29 March 2006.

1. In an attempt to avoid a repetition of the process that has seen the applicant make successive unsuccessful applications to revisit the original judgment of Brown J as varied by the judgment of the Full Court delivered 5 September 2000, we think it is appropriate that we set out the provisions of s 79A for the benefit of the applicant. Unless he can obtain leave to bring an application based within the confines of that section he should now realise that repeated applications to re-agitate the findings of the trial Judge cannot succeed.

1. Insofar as may be relevant that section provides as follows:

“79A(1).         Where, on application by a person affected by an order made by a court under section 79 in proceedings with respect to the property of the parties to a marriage or either of them, the court is satisfied that:

(a)there has been a miscarriage of justice by reason of fraud, duress, suppression of evidence (including failure to disclose relevant information), the giving of false evidence or any other circumstance

…

the court may, in its discretion, vary the order or set the order aside and, if it considers appropriate, make another order under section 79 in substitution for the order so set aside.”

1. The application for leave to appeal is dismissed.

I certify that the 14 preceding
 paragraphs
are a true copy of the reasons
for judgment delivered by this
Honourable Full Court.



Associate