Taffa and Taffa
[2010] FamCAFC 203
•13 September 2010
FAMILY COURT OF AUSTRALIA
| TAFFA & TAFFA | [2010] FamCAFC 203 |
| FAMILY LAW – APPEAL – DIVORCE - Wife’s appeal against trial judge’s decision to dismiss application for a decree of dissolution of marriage – Not established that the trial judge was in error in recognising the divorce previously granted by the Lebanese Canonical Court pursuant to s 104(3)(d) of the Act – Not established that trial judge erred in finding that wife had been applicant in Lebanese proceedings – Not established that recognition of the divorce manifestly contrary to public policy – Not established that wife was not afforded natural justice by Lebanese Canonical Courts granting divorce – Appeal dismissed. |
| Family Law Act 1975 (Cth) s 104 |
| APPELLANT: | MS TAFFA |
| RESPONDENT: | MR TAFFA |
| FILE NUMBER: | SYF | 5067 | of | 2000 |
| APPEAL NUMBER: | EA | 21 | of | 2009 |
| DATE DELIVERED: | 13 September 2010 |
| PLACE DELIVERED: | Sydney |
| PLACE HEARD: | Sydney |
| JUDGMENT OF: | Coleman, May & Murphy JJ |
| HEARING DATE: | 13 September 2010 |
| LOWER COURT JURISDICTION: | Family Court of Australia |
| LOWER COURT JUDGMENT DATE: | 21 January 2009 |
| LOWER COURT MNC: | [2009] FamCA 85 |
REPRESENTATION
| COUNSEL FOR THE APPELLANT: | Mr Sandroussi |
| SOLICITOR FOR THE APPELLANT: | AYS Legals |
| COUNSEL FOR THE RESPONDENT: | Ms Boyle |
| SOLICITOR FOR THE RESPONDENT: | Legal Aid Commission of NSW |
Orders
That the appeal is dismissed.
That there is no order for costs.
IT IS NOTED that publication of this judgment under the pseudonym Taffa & Taffa is approved pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth).
| THE FULL COURT OF THE FAMILY COURT OF AUSTRALIA AT SYDNEY |
Appeal Number: EA 21 of 2009
File Number: SYF 5067 of 2000
| MS TAFFA |
Appellant
And
| MR TAFFA |
Respondent
EX TEMPORE REASONS FOR JUDGMENT
Coleman J
By Amended Notice of Appeal filed 24 July 2009, Ms Taffa, the wife, appealed against orders made by Le Poer Trench J in proceedings between herself and Mr Taffa, the husband.
His Honour’s order, dated 21 July 2009, provided that the wife’s application for a decree of dissolution of marriage filed 23 March 2007 be dismissed. From that order the wife has appealed.
Some matters of background to the appeal are instructive, and these find expression in the trial judge’s reasons for judgment. As will be seen, the appeal ultimately turns upon a narrow issue, which does not involve the evidence of the parties as to facts, but rather a consideration of expert opinion evidence, and the trial judge’s findings in relation to that evidence.
The trial judge identified the application before him as being the wife’s application for a decree of dissolution of a marriage solemnised in Kuwait in March 1973. The husband opposed the granting of a decree on the basis that the marriage had already been dissolved by a court in Lebanon on 24 November 1998. The wife’s case in response was that the 24 November 1998 decree ought not be recognised pursuant to the provisions of s 104 of the Family Law Act1975 (Cth) (“the Act”). There is no suggestion that his Honour misconceived the issue raised in the proceedings.
It was not in dispute that the parties were validly married in March 1973. It was not in dispute that there had been a number of separations, albeit the details of those separations were controversial. Depending upon whose version of events was preferred, the parties separated in 1999 or 1996. For the purpose of the proceedings before the trial judge, and for present purposes, nothing turns on when the separation occurred.
There were three children of the marriage, all of whom were adult by the time of the proceedings before the trial judge. In 1985 the parties commenced to reside in Australia. The husband had obtained Australian citizenship in 1987, but remained a citizen of Lebanon, retaining dual citizenship.
On or about 15 October 1998, the parties attended at the Islamic Centre at L. On or about 4 November 1998, the parties attended the Lebanese Embassy in Sydney. Each there executed a power of attorney authorising their respective lawyers in Lebanon to proceed with the divorce application which had been filed in the civil courts in Lebanon.
On 24 November 1998, in consequence of the powers of attorney which had been given to the legal representatives earlier that month being exercised, the parties were divorced by the Jaafarite Canonical Court in Lebanon. There was at the same time an order made with respect to the property of the parties.
In reliance upon the orders of the Jaafarite Canonical Court, the husband remarried. The wife asserted that between December 1998 and mid January 1999 there had been some reconciliation.
In mid 2000 the wife appealed against the decree dissolving the marriage granted by the Jaafarite Canonical Court in Lebanon on 24 November 1998. On 29 December 2004, the wife’s appeal was dismissed and the Appeal Court in Lebanon, comprising three judges, upheld the decree of dissolution of marriage granted on 24 November 1998. The wife apparently lodged two further appeals, neither of which the evidence before the trial judge reveals to have been successful.
The wife verified her application for dissolution of marriage which was filed on 10 October 2006. The application was filed, as is readily apparent, a little under two years after the Court of Appeal in Lebanon dismissed her appeal against the previous decree of dissolution granted in turn, six years earlier.
It was common ground before the trial judge and before this Court that the orders of the Lebanese Court of Appeal of 24 November 1998 stood and have not been set aside.
As will be seen, the appeal to this Court involves essentially a challenge to one aspect of the trial judge’s conclusions which, if accepted, would have precluded his Honour from finding as he did with respect to the status of the Lebanese dissolution of the marriage.
There is a curious irony in that the proceedings before the trial judge were for a dissolution of marriage in circumstances where, as is apparent from the record below, and in this Court, there has been no serious challenge to the validity of the Lebanese decree of dissolution of marriage.
Without being unfairly critical, in the proceedings before the trial judge and on appeal to this Court the wife has sought to avoid recognition of the Lebanese divorce in reliance upon the provision of s 104(3) of the Act, by reference to one aspect only of the requirements of that section. Why s 104(5) was not relied upon by the husband in the alternative to s 104(3) is unclear.
THE TRIAL JUDGE’S DECISION
The trial judge provided comprehensive reasons for his decision, and brief reference to those reasons is appropriate. Perhaps having regard to the grounds of appeal, more detailed reference to parts of his Honour’s reasons than to others are appropriate.
His Honour identified the provisions of s 104 of the Act as the basis of the husband’s defence to the wife’s application for dissolution of marriage, the crux of which was there was no jurisdiction to entertain a divorce application, because the parties’ marriage had been validly dissolved in Lebanon, four or five years earlier.
The trial judge identified the issue before him, in his reasons for judgment, as being that it was important to know who was the applicant and who was the respondent in the proceedings which resulted in the dissolution of marriage in Lebanon. His Honour referred to the statutory definition of “applicant” and “respondent”, but nothing turns on that.
Proceeding directly to the expert opinion evidence, his Honour referred firstly to the evidence of Sheikh W (husband’s expert) and later to the evidence of Sheikh I (wife’s expert). It might be noted that neither at trial nor before this Court, was the expertise of each of the learned Sheikhs to give evidence with respect to the issue before the trial judge controversial. His Honour was thus placed in a position of having expert opinion evidence from two eminently qualified experts.
His Honour detailed the evidence of Sheikh W in his reasons, and the grounds upon which Sheikh W concluded two things of relevance to his Honour, and of relevance in this appeal.
The first of those matters was that the decree pronounced by the Lebanese courts constituted a “khula” divorce. The second, which flowed from that conclusion, was that, as such, the wife was the applicant in the proceedings. The significance of the wife having been, or having been found to have been the applicant, was to fulfil the requirements of s 104(3) of the Act. That is to say, if his Honour permissibly found that the wife had been an applicant in the proceedings in Lebanon, then the husband could validly invoke s 104 (3). If she had not, reliance upon s 104(3) on that basis was problematic. As noted earlier, it is not suggested that the divorce granted in Lebanon was invalid, but rather whether s 104(3) of the Act could be validly enlivened. Whether s 104 of the Act simply codifies the common law principles of private international law or replaces them is not something that was debated before his Honour, or raised in the context of this appeal. Nor was the availability of s 104 (5) in aid of the husband’s case.
The trial judge referred to the oral evidence of Sheikh W, during the course of which Sheikh W, having seen the documents in relation to the November 1998 decree of the Jaafarite Canonical Court in Lebanon, deposed to those documents proving in his opinion that it was under the “khula” divorce law that the parties had been divorced. That meant that the divorce application had been initiated by the wife according to Sheikh W. His Honour recorded that the Sheikh gave evidence in those terms.
His Honour also referred to the significance, according to Sheikh W, of the husband’s name appearing first on the application, even if it was the wife who had initiated the proceedings. The evidence of Sheikh W, which his Honour accepted, was that there was nothing significant about that, in that in Lebanon the husband’s name would always appear first on the court papers.
The trial judge referred to the evidence of Sheikh W reiterating that, as soon as the word “khula” divorce appears in the document, the implication is that the wife was the applicant.
His Honour then referred to the evidence of Sheikh W in relation to the significance, if it be the fact, that the parties were mentioned as joint applicants, and Sheikh W’s evidence as to the nature of the divorce which would have resulted in those circumstances. The trial judge again (Appeal Book page 21, paragraph 31) referred to the evidence of Sheikh W as to why he concluded, as he did, both with respect to the nature of the divorce which had been granted in Lebanon, and the fact that the wife would have been the applicant.
His Honour then referred to the evidence of Sheikh I. Sheikh I’s evidence-in-chief, there is no doubt, was that he did not believe that the wife had been the applicant, or that there had been a valid “kohli” divorce, although he suggested that having regard to his conclusions as to the identity of the applicant or applicants, there may have been another basis for a valid divorce under the laws of Lebanon. The terms “kuhla” and “kholi” refer to the same thing.
The evidence of Sheikh I was then referred to in detail by the trial judge. The Sheikh confirmed that in the document from the Jaafarite Canonical Court of 24 November 1998, the divorce was described as a “khula” divorce, and that accordingly, in such a divorce the wife was the applicant.
The trial judge then turned to consider both the form of the judgment of the Jaafarite Canonical Court of 24 November 1998, and that of the Lebanese Court of Appeal delivered on 29 December 2004. At Appeal Book page 22, paragraph 37, the trial judge quoted in detail from the reasons for judgment of the Court of Appeal. The judgment, which appears at Appeal Book page 151, is consistent with what his Honour there recorded.
His Honour then concluded that the document relied upon by the husband as evidencing the dissolution of marriage, being the decision of the Jaafarite Canonical Courts of 24 November 1998, was the document to which the Court should pay greatest attention.
That document, his Honour recorded, made clear that the divorce was applied for by the wife. He reiterated that the evidence of the experts confirmed that a “khula” divorce was applied for by the wife. His Honour thus found on the balance of probabilities that the husband was the respondent for all practical and legal purposes in the proceedings which gave rise to the judgment of the Jaafarite Canonical Court on 24 November 1998. His Honour thus found the one contentious aspect of s 104 in favour of the husband, concluding that the wife was an applicant as the section required.
The trial judge then proceeded to consider whether, as the wife asserted in the alternative, that the decree ought not be recognised pursuant to the terms of s 104(4) of the Act. The effect of s 104(4) is that, albeit a decree is able to be recognised by reference to the provisions of s 104(3), it ought not be recognised having regard to the common law rules of private international law, either on the basis of a denial of natural justice, or that recognition would be manifestly contrary to public policy.
His Honour addressed those matters in his reasons for judgment, and concluded, having regard to his findings with respect to the wife’s involvement in the proceedings in Lebanon, and the first instance and appeal history of those proceedings, and to the other matters to which he referred in paragraphs of his reasons with which he concluded his judgment that the parties having elected as they did to pursue their legal rights in Lebanon, and the proceedings having been conducted regularly, and in the absence of any denial of natural justice, no basis for concluding in accordance with s 104(4), that the Lebanese divorce ought not be recognised had been established.
The Court earlier this morning refused an application to adjourn the hearing of the appeal by the wife’s solicitor. With respect to him, as his written submissions to the trial judge, and oral submissions to this Court confirm, the suggestion that being required to conduct the appeal on behalf of the appellant would place Mr Sandroussi “out of his depth”, was unduly self-deprecating on his part. As the record would confirm, the written submissions to the trial judge, to which we have had regard, and the oral submissions which Mr Sandroussi has put before us, leave us comfortably satisfied that our decision not to adjourn the appeal was, with hindsight, undoubtedly correct. Nothing which could have been agitated on behalf of the wife has not been by Mr Sandroussi, either in his written submissions, which were based upon his conduct of the trial before the trial judge, or the oral submissions which he has put before us.
THE GROUNDS OF APPEAL
The grounds of appeal fall within a narrow compass, and essentially they relate to whether the trial judge erred in finding that the wife had been the applicant in the proceedings in Lebanon, which gave rise to the dissolution of marriage in that country.
That essential challenge encompasses, I perceive, grounds 1 and 2 of the notice of appeal.
Ground 3 relates to the public policy provisions of s 104(4) of the Act, and ground 4 relates to the asserted denial of natural justice.
My reasons for rejecting the first two grounds of appeal, would leave no scope for success in relation to grounds 3 and 4. Implicit in the reasons which I will briefly detail for rejecting grounds 1 and 2, is my acceptance of the findings of the trial judge that the proceedings in Lebanon in 1998, confirmed by the Court of Appeal in Lebanon in 2004, were conducted in circumstances where what we would interpret as natural justice principles were observed. Stating the position more correctly in an appellate context, there is an absence of evidence to suggest that the principles of natural justice as applied in this country were not observed in Lebanon. No basis for upholding ground 4 has been established.
Those matters are referable also to the public policy challenge, the effect of which, in my view, is that where, as undoubtedly occurred, the parties were represented in a Lebanese court, and had rights determined in accordance with the laws of Lebanon at first instance and on appeal, no issue of public policy arises in the present circumstances. How one could has not really been suggested in any event.
Turning then to the crux of the appeal, and at the risk of oversimplifying the submissions that have been made in relation to it, my conclusions are essentially as follows. As observed earlier, the trial judge had before him, at least in evidence-in-chief, different expert opinion evidence from two Sheikhs, each of whom was qualified to give evidence in relation to the matters to which they deposed. There was no challenge to the expertise of either Sheikh.
What the Sheikhs initially said was in conflict, but as the trial judge recorded, ultimately the difference of opinion between the learned Sheikhs did not remain.
The evidence placed before the trial judge does not seem to me to have ultimately been conclusive. That was not surprising perhaps. The issue involved the laws of a foreign country. The oral evidence appears to have been given through interpreters. As the transcript of submissions of counsel for the wife before this Court would confirm, whatever the status of the distinction, if there be one, some possible confusion between the term “applicant”, a term well-known and understood by our laws, and “applicant” or “initiator” in relation to the laws of Lebanon, if there be such a distinction, did not assist the trial judge in making the findings which he was obliged to in order to determine the proceedings.
The test for present purposes is not in doubt. It is not whether the findings made by the trial judge were the only ones reasonably open to him, but rather whether the wife can establish that the findings made by his Honour were not reasonably open to him. The fact that other findings may have been open to his Honour does not render those made by him erroneous.
As noted earlier, the thrust of the difference of opinion between the experts fell within a small but significant compass. The evidence of Sheikh W on behalf of the husband, was that what was referred to at some points in the proceedings as a “kohli” divorce, in others as a “khula” divorce, although there is no doubt that it is one and the same divorce, was the nature of the divorce granted by the Lebanese Court in November 1998, and confirmed in December 2004. In those circumstances, the wife was, or would have been, the applicant, thus enlivening s 104(3) of the Act. Sheikh I asserted in his evidence-in-chief in the wife’s case, that the wife was not the applicant, and as such, the decree pronounced could not be a “kohli” or “khula” divorce.
In oral evidence at Appeal Book volume 3 page 472 the trial judge, before cross-examination, asked Sheikh W a series of questions. His Honour said, having referred firstly to a “khula” divorce:
Does the husband have to agree to that divorce going through for the court to grant the divorce?
The Sheikh replied:
Of course the husband has to agree on that divorce for the judge to grant them a divorce.
His Honour asked:
So the wife couldn’t ask for that type of divorce unless she knew her husband would agree to it. Is that the case?
The Sheikh replied:
No, she can apply still.
Not surprisingly his Honour, seemingly a little non-plussed, said:
Sorry?
The Sheikh clarified:
She can apply still, even if she knew he wasn’t going to accept.
His Honour asked:
So what happens in cases where the husband doesn’t want a divorce and the wife is applying for a divorce?
The Sheikh replied:
She won’t be granted a divorce.
His Honour then asked whether the divorce, accordingly, could only be granted if the husband agreed to it, which clearly the Sheikh said was the case.
For my part I am not conscious of anywhere in his cross-examination where Sheikh W departed from the evidence which he thus gave. The Sheikh’s opinion evidence as recorded by the trial judge in the reasons for judgment to which I referred earlier did not change, either as to the nature of the decree pronounced by the Lebanese courts, or the reality that the wife would have been the applicant.
In oral evidence-in-chief, at Appeal Book volume 3 page 483, Sheikh I adopted the evidence which he had provided earlier in the written form, to which the trial judge referred in his reasons for judgment.
When asked by Mr Sadroussi whether there was a:
…certain question in relation to a khula divorce. Now is it correct that a khula divorce is a divorce initiated by the wife?
Sheikh I appeared to agree.
Mr Sandroussi then asked the Sheikh whether:
...in a khula divorce is it correct that the wife must speak to her husband and request a divorce from him?
To which the Sheikh replied:
Yes.
Mr Sandroussi followed with the question:
And then offer him something in return for his acceptance?
The Sheikh replied:
The khula divorce has prerequisites.
Sheikh I suggested that there were, accordingly, two prerequisites. The first was that the husband would agree. The second related to property or a waiver in relation to property.
Sheikh I was then asked by Mr Sandroussi:
Now, when it comes, however, to go in to the Shari’a court to apply to confirm that divorce, who is the one that applies in that court?
Sheikh I replied:
The onus is on the husband.
It can be inferred from that answer that the Sheikh was clearly adhering to his earlier evidence that the husband was the applicant.
Mr Sandroussi then asked:
And, of course, the fact that the divorce is in the hands of man is the reason for such a procedure.
The Sheikh replied:
Well, that is one of the reasons basically because if we are talking strictly here from a legalistic Islamic point of view, it is a right that has been given to the man, and it can only be waivered by the man himself.
After another question, Mr Sandroussi then asked the question:
Even if the wife had initiated the process of divorcing her husband in front of the Sheikh or in front of the court, the Jaafarite Court, the husband is the one that apply.
The Sheikh replied:
Yes, indeed, yes.
Mr Sandroussi then asked:
You were asked to give your opinion about the divorce that was pronounced by Sheikh [N] at the Al-Zahra Centre and on whether that divorce was a valid divorce.
The Sheikh agreed that he had previously stated that he did not think it was a “khula” divorce, but it could be a valid “raji” divorce.
That question and answer is not particularly relevant for present purposes, given the conclusion in 1998 of the Jaafarite Canonical Court with respect to the proceedings in Australia, but the question which followed was:
Whether kaji or raji, a divorce is a divorce, you agree?
To which the Sheikh replied:
Yes, indeed.
In cross-examination, counsel for the husband (Appeal Book volume 3 page 487) referred the Sheikh to the documents from the Jaafara religious courts in Lebanon.
The Sheikh was asked whether the document from the Jaafara religious courts also recorded that the decree or divorce was a kahali, which can clearly be understood as “khula” or “kohli” divorce. The Sheikh agreed that the document was to that effect.
Having thus obtained the concession that the documents which had been placed before him suggested to Sheikh I that there had been a “kohli” or “khula” or “kahali” divorce granted by the Jaafara Canonical Courts in November 1998, counsel for the husband suggested:
In a khula divorce the wife is the applicant in that divorce, isn’t she?
The Sheikh replied:
Yes, in a khula divorce, yes.
Perhaps not surprisingly, counsel for the husband then sat down.
In the course of re-examination, I perceive that whilst a number of matters were potentially obscured, I do not perceive that the thrust of that evidence changed.
The trial judge, thus had before him evidence capable of supporting his finding that the wife had been the applicant for the divorce in Lebanon. His Honour referred to the evidence to which I have referred from Sheikh I, at paragraph 34, Appeal Book page 21‑22. In my view, the evidence to which his Honour referred, and to which I have briefly referred, rendered it reasonably open to the learned trial judge to conclude, as he did, in relation to the wife having been the applicant in the proceedings in Lebanon, thereby enlivening the provisions of s 104(3) of the Act.
As noted earlier, the evidence was not entirely clear, and the evidence of Sheikh I was, on its face, inconsistent insofar as the evidence he gave in evidence‑in‑chief was different to that which he gave in cross-examination. Whatever the reasons for that, in my view, it precludes the wife from successfully complaining either that the trial judge failed to have regard to the evidence adduced on her behalf, or that it was not reasonably open to the trial judge to find as he did.
So far as the former is concerned, with respect to counsel for the wife, the trial judge cannot possibly recount in the detail which the trial judge did in this case the evidence of a witness relied upon by a party, as was the case of the wife with respect to the evidence of Sheikh I, without having considered it.
It is apparent from the critical paragraphs of his Honour’s judgment in relation to the evidence of the two Sheikhs, that his Honour closely analysed the evidence, and made the finding he did.
In those circumstances I do not believe that the challenges embodied in grounds 1 and 2 can succeed, and I would accordingly dismiss the appeal.
May J
I agree with the reasons of the learned presiding judge, and I would also dismiss the appeal.
Murphy J
I agree that the appeal should be dismissed for the reasons outlined by the presiding judge and only wish to add a couple of additional matters.
The essence of the argument on behalf of the appellant, which might be seen to derive from ground 1, is that the initiation of a divorce process should be distinguished from an application to a court.
It is said, in effect, that the trial judge conflated the meaning of the two, and as a result erred in finding that the husband was the “respondent” for the purposes of s 104(3)(d) of the Act. In particular, it is argued that “… the parties should have been regarded by the trial judge as joint applicants”. If the parties were joint applicants, there is no provision of s 104 which is satisfied in this case, and therefore the Lebanese divorce should not be recognised.
It is in my view possible to construe parts of the evidence in a manner consistent with what is said to be a confusion in respect of the issue just referred to. Parts of the evidence cited by the learned presiding judge exemplify that.
However, the principal difficulty with that argument in the context of this appeal is, as the learned presiding judge points out, that there was ample evidence before the trial judge to support the findings made by his Honour.
Further, as the transcript and the trial judge’s reasons show, the trial judge was alive to the possibility of a finding that the parties were joint applicants, but plainly rejected it.
In my view, the trial judge was entitled to reach the conclusion which he did, and no error is demonstrated.
I also respectfully agree with the learned presiding judge that no error is demonstrated by reason of the matters referred to in s 104(4) of the Act.
Costs
We do not propose to make an order for costs. Section 117 of the Act provides that unless the Court is of the opinion that circumstances justify a costs order, each party should bear their own.
As the Court has many times previously recorded, the fact that a party is in straightened or even dire financial circumstances is not necessarily an effective shield against a costs application.
As we have recorded in our reasons for judgment, as conducted before the trial judge, the case was not necessarily simple or straightforward. The submissions before this Court confirm, albeit within a narrow compass, the issues were not without complexity. As our conclusions confirm, although unsuccessful this could not fairly be described, nor with respect has counsel for the husband suggested it to be, as a frivolous or vexatious or hopeless appeal.
Mr Sandroussi agitated the main challenge, effectively and expeditiously in terms of time. We are not of the opinion that the circumstances justify a costs order.
I certify that the preceding sixty nine (69) paragraphs are a true copy of the reasons for judgment of the Honourable Full Court (Coleman, May & Murphy JJ) delivered on 13 September 2010.
Associate:
Date: 26 October 2010
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