Sohrab and Bahar

[2017] FamCA 199

FAMILY COURT OF AUSTRALIA

SOHRAB & BAHAR [2017] FamCA 199

FAMILY LAW – PRACTICE AND PROCEDURE – Section 106A Family Law Act 1975 – particular documents – non-compliance by person seeking relief – discretionary considerations for granting relief

Family Law Act 1975 – ss  79A(1)(b), 79A(1)(c),106A

Gabel v Yardley (2008) 40 FamLR 66 Maddocks and Maddocks (1981) FLC 91-031
APPLICANT:	Mr Sohrab

RESPONDENT: Ms Bahar

FILE NUMBER: CAC 1429 of 2014

DATE DELIVERED: 3 April 2017

PLACE DELIVERED: Canberra

PLACE HEARD: Canberra

JUDGMENT OF: Gill J

HEARING DATE: 20 March 2017

REPRESENTATION

SOLICITOR FOR THE APPLICANT: Self-representing

SOLICITOR FOR THE RESPONDENT: Mr A Bak, Farrar Gesini Dunn

Orders

1. That pursuant to s 106A(1) of the Family Law Act 1975 the Court appoint an officer of the Court, being the Registrar of the Canberra Registry or such other person nominated by the Court, to execute the following instruments in the name of the respondent husband, Mr Sohrab, and do all acts and things necessary to give validity and operation to those instruments:

   (a)Transfer for the property referred to in Certificate of Title Volume … Folio … known as U Street, Suburb R in the Australian Capital Territory (“the Suburb R property”), causing that property to be transferred from the respondent and applicant to the applicant;

   (b)Transfer for the property referred to in Certificate of Title Volume … Folio … known as W Property, X Street, in the Australian Capital Territory (“the W Property property”), causing that property to be transferred from the respondent and applicant to the applicant;

   (c)Transfer for the property referred to in Certificate of Title Folio … known as Y Street, Suburb Z in New South Wales (“the Suburb Z property”), causing that property to be transferred from the respondent and applicant to the applicant;

   (d)Commonwealth Bank of Australia Discharge Authority for the following mortgages (references are to registration numbers):

   (i)…05, secured against the W Property;

   (ii)…07, secured against the Suburb Z property; and

   (iii)…58, secured against the Suburb R property.

   (e)Letter to the Commonwealth Bank of Australia authorising the closure of the joint account …35.

2. The husband’s application in a case filed 6 March 2017 is adjourned to a date to be fixed.

3. The wife’s response to an application in a case filed 15 March 2017 as to orders sought 1, 2, 4 and 5 is adjourned to a date to be fixed.

Note: The form of the order is subject to the entry of the order in the Court’s records.

IT IS NOTED that publication of this judgment by this Court under the pseudonym Sohrab & Bahar has been approved by the Chief Justice pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth).

Note: This copy of the Court’s Reasons for Judgment may be subject to review to remedy minor typographical or grammatical errors (r 17.02A(b) of the Family Law Rules 2004 (Cth)), or to record a variation to the order pursuant to r 17.02 Family Law Rules 2004 (Cth).

FAMILY COURT OF AUSTRALIA AT CANBERRA

FILE NUMBER: CAC 1429 of 2014

Mr Sohrab

Applicant

And

Ms Bahar

Respondent

REASONS FOR JUDGMENT

1. The competing applications made by the parties concern final orders made in relation to the property of the parties by Watts J on 1 February 2017.  Those orders required both the wife and the husband to take certain steps in order to effect an alteration of the parties’ property interests in property they each held following their marriage together. 

The husband’s application

1. The husband’s Application concerns the operation of Order 16 of those orders, an order made by consent within the context of the contested proceedings.  That order reads as follows:

   By consent, the wife shall consent to and shall seek a permanent stay of the proceedings in Iran save for the purposes of obtaining a divorce under Iranian law. IT IS NOTED that the wife says she has withdrawn the proceedings in Iran which she had previously instituted there and each party is restrained from instituting any further proceedings in Iran against the other for financial relief of any kind and from having any other person do so on their behalf.

2. The husband asserts that the wife has neither consented to nor sought a permanent stay of the proceedings in Iran. 

3. He complains that the wife has produced no document that would have the effect of a stay.[1]  There is no obligation under the orders for her to do so.

   [1] Husband’s affidavit filed 6 March 2017 [7]

4. He has sought documents from the wife to provide for his safety and security on travel to Iran.[2]  She is not required to provide such.

   [2] Husband’s affidavit filed 6 March 2017 [9]

5. He complains that the evidence the wife has provided of withdrawal of the proceedings in Iran is not verifiable.[3]  The wife is under no obligation to provide any such evidence.

   [3] Husband’s affidavit filed 6 March 2017 [10]

6. The husband says that the wife has provided no indication that the proceedings in Iran have been irrevocably withdraw, nor provided “guaranteed undertakings”.[4]  Again, there is no obligation for her to do so.

   [4] Husband’s affidavit filed 6 March 2017 [11]

7. The husband has made assertions as to what would be required to be enforceable in Iran.  He has provided no credible evidence to support the assertions.

8. However, the wife accepts that she has neither consented to nor sought a permanent stay.  She says that she is unable to do those things.  She cannot seek a stay because there are no proceedings on foot. She says that she has done all that is necessary to be done by discontinuing the proceedings.  She points to the fact that she is bound by Order 16 not to institute further proceedings.

9. In short, the husband’s concern is that non-compliance with those parts of Order 16 that deal with a permanent stay of proceedings in Iran leaves the husband at risk of further proceedings, should the wife leave Australia.  In the event that the wife leaves Australia, he says he will have no recourse to an Australian remedy.  The current status of the proceedings in Iran, as withdrawn by the wife, he says, is only a temporary remedy, whereas he requires a remedy that will prevent the wife from instituting fresh litigation in Iran or reviving old litigation in Iran. 

10. The husband now seeks alternate orders, as set out in his document ‘Amended Minutes of Orders Sought by the Applicant Husband’ filed 20 March 2017, in substitution for the orders contained at Order 16, in order to provide him with more permanent protection than the discontinuing of proceedings by the wife.

11. The substituting orders he seeks are one sided, seeking that he be further protected against future proceedings, but not that the wife be further protected.  Order 16, as it currently stands, carries protections for the wife as well as the husband.

12. The husband was asked to identify the source of the power to make the orders that he seeks in his Application (as amended in his Amended Minute of Orders Sought by the Applicant Husband filed 20 March 2017).  He was unable to do so. 

13. The wife queried whether the husband’s Application constituted enforcement proceedings or in the alternative constituted proceedings to alter the parties’ interests in the property.  The orders sought by the husband do not appear, on their face, to be an enforcement of the obligations set out in Order 16, but rather seek to create a new set of obligations.  Where the proceedings for the alteration of the property interests have been finalised, the power of the Court to further alter the property interests pursuant to s 79 of the Act is exhausted.  There is no remaining power under that provision to alter interests.[5]

    [5] Gabel v Yardley (2008) 40 FamLR 66 at [57]

14. Arguably, jurisdiction to deal with the matter could be found within s 79A of the Family Law Act 1975 if the circumstances set out in s 79A(1)(b) or (c) are established. This was not a matter addressed by the parties. No criticism is made of the wife in relation to this failure to address s 79A, as the orders sought were by the husband.

15. Given that it appears that the wife has not, and is unable to consent to or seek a permanent stay, arguably s 79A(1)(b) or (c) are applicable.

16. As this source of power was not identified in the hearing of the matter, particularly where the applicant is self-represented, I am reluctant to deal with that issue to finality without giving some further opportunity to be heard. The matter will be relisted to allow the parties to address this matter and to address their competing applications for costs in relation to this application and response.

The Wife’s Response

1. In her response, in furtherance of Orders 18 and 19 made by Watts J, the wife sets out a suite of documents for execution by the Registrar pursuant to s 106A of the Family Law Act 1975. Section 106A relevantly provides that:

   (1)  If:

   (a)  an order under this Act has directed a person to execute a deed or instrument; and

(b)  that person has refused or neglected to comply with the direction or, for any other reason, the court considers it necessary to exercise the powers of the court under this 

the court may appoint an officer of the court or other person to execute the deed or instrument in the name of the person to whom the direction was given and to do all acts and things necessary to give validity and operation to the deed or instrument.

1. Nygh J in Maddocks and Maddocks (1981) FLC 91-031 at 76,295 in relation to what was then s 84 of the Family Law Act 1975, the predecessor to s 106A and so far as is relevant to his case, in precisely the same terms, in the context of an obligation “to do and perform all such acts and things as may be necessary” said:

   It cannot be said that a person has refused or neglected to comply with a direction unless that obligation of that person has been clearly spelt out. For that reason, I hold that there must be a specific order directing the wife to execute a deed or instrument before sec. 84(1) can operate.

2. Orders 18 and 19 made by Watts J provide:

   18.If either party refuses, fails or neglects to execute any document necessary to put these Orders into effect 7 days after being requested to do so, and any such refusal, failure or neglect is proved by Affidavits filed and served by or on behalf of the party alleging this, The Registrar, Deputy Registrar or other Officer of the Family Court at Canberra be and is hereby appointed pursuant to Section 106A of the Act to execute such document in the name of such party.

   19.There be liberty to apply in relation to the implementation of these Orders.

3. Unlike the case that confronted Nygh J, the necessary specificity as to an obligation to execute documents has been effected by Order 18 of the orders made by Watts J.  It is the request to execute a particular document, being restricted to documents of the class necessary to effect the transfers, that identifies the document the subject of the obligation.  Those requests have been made.

4. The orders of Watts J go further than simply create obligations for the parties to execute documents, in that Order 18 makes appointments to execute such documents on the failure of the parties to do so.  The matter comes back before me pursuant to Order 19 to establish the particular documents that have not been executed by the parties so that they may be executed by a person appointed pursuant to Order 18.

5. The s 106A relief is sought on the basis that the husband has failed to undertake the steps required of him pursuant to those orders. The husband accepts that he has failed to take the steps identified in the wife’s response. He has declined to do so, he says, in the context of the wife’s failure to comply with Order 16 as described above. He has taken no issue that the documents identified in the application are necessary to bring the orders into effect.

6. The husband asserts that, once the relevant documents have been executed and the relevant property has been transferred, the Australian Courts will have no further hold on the wife in relation to a risk of her engaging in litigation in Iran contrary to Order 16.  He has indicated a refusal to comply with the orders until the issues that he raises in relation to Order 16 are dealt with. 

7. An application under s 106A does not entitle a court to reconsider the appropriateness of the orders made at trial. It provides a mechanism to cause orders to be carried out. However, the granting of relief is expressed as a matter of discretion. Once the preconditions set out in paragraphs (a) and (b) are met, the court may grant the relief.  Accepting that the onus is on the applicant for the relief to demonstrate that the relief ought to be given, typically, the meeting of the preconditions set out in paragraphs (a) and (b) will see the relief granted.  The fact that parties are entitled to the fruits of their litigation of itself provides a strong reason why the relief ought to be given, meaning that normally a strong basis for the refusing of relief will need to be made out before the relief is withheld.  However, reason not to give the relief may arise where the giving of the relief would significantly distort the effect of the orders made.  Such a circumstance may, but will not always, arise where the party seeking the relief is not compliant with other aspects of the orders.

8. On the question of whether the relief ought to be granted, the parties raised two arguments. Each related to the wife’s partial non-performance of Order 16.  For the wife it was said that there was a lack of interconnectedness between Order 16 and the orders sought to be enforced so that the partial non-performance of Order 16 should not disentitle her to the relief.

9. For the husband it was said that he is lacking the essential protection contained in Order 16, the implication being that, at present, the overall scheme of the orders is being undermined by the wife’s partial non-compliance with Order 16.  This, he said, should disentitle her to the remedy until her partial non-compliance is remedied.

10. A significant distortion of the effect of orders may arise where there is a clear interaction between the orders that have not been complied with by a party and those orders that the same party seeks to enforce by means of s 106A. It may also arise where a significant risk to the overall scheme of the orders is demonstrated as arising from the failure of the party who seeks relief pursuant to s 106A to comply with other orders.

11. Dealing firstly with the wife’s assertions as to a lack of interconnectedness, firstly, the seeking or consenting to a stay is not expressed as a condition precedent to compliance with the other orders made by Watts J. 

12. Secondly, a number of the orders have immediate effect without the need for the execution of any further documents.   At present, the wife is required to indemnify the husband in respect of properties that have not as yet been transferred to her.  There is a clear interconnectedness between the indemnification orders and the transfer orders.  The failure to execute the various documents is thereby causing a significant distortion of the effect of the orders made by Watts J.  There is no such clear interconnectedness with order 16, other than to recognise that they form part of the one overall scheme for the adjustment of the parties’ property interests. 

13. Dealing with the husband’s claim, in considering Order 16 as part of the overall scheme, the risk asserted by the husband is that, despite orders prohibiting her from doing so, and despite the discontinuing of the previous litigation in Iran by the wife, she may in the future resume litigation, absent the order for a permanent stay in relation to the discontinued litigation. If the husband had established that there was a significant risk of further litigation, by virtue of some evidence that the wife has not discontinued the proceedings, by some evidence that she had commenced further litigation, or was in the preparatory stages of doing so, or even had a motive to do so, then an argument may have been mounted that the absence of that compliance by the wife creates such a distortion of the scheme set out in the orders as to deprive her of relief under s 106A.

14. However, even taking the husband’s case at its highest, and examining the various complaints made against the wife as outlined above, it is not established, in respect of this application, that there is any appreciable risk of the wife engaging in litigation in contravention of the other protections contained within Order 16. 

15. While the husband asserts that he is at risk, there is an absence of cogent evidence that the permanent stay that the wife was to seek or to consent to (noting that the orders merely require the wife to seek and consent to a permanent stay, not that she must cause one to be in place) would provide greater protection than that provided by the current partial compliance.

16. At present, the wife is being deprived of the fruits of her litigation.  That is strong reason to grant the relief.  Additionally, the currently operative nature of a number of terms of the orders means that, absent the relief, the overall scheme is being significantly distorted to the detriment of the wife.  Such distortion has not been demonstrated with respect to the husband. Absent cogent reason against, she is entitled to the relief she seeks.  Such cogent reason has not been demonstrated.

I certify that the preceding thirty-four (34) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Gill delivered on 3 April 2017.

Associate: 

Date:  3 April 2017