Taffa & Taffa
[2014] FamCAFC 106
•23 June 2014
FAMILY COURT OF AUSTRALIA
| TAFFA & TAFFA | [2014] FamCAFC 106 |
| FAMILY LAW – APPEAL – BIAS – where the parties were divorced in Lebanon – where previous proceedings determined that that divorce ought be recognised pursuant to s 104 of the Family Law Act 1975 (Cth) (“the Act”) – where an appeal by the wife against that determination was unsuccessful – where the wife subsequently sought property orders pursuant to s 79 of the Act – where the property that could be subject to such orders was, if it existed, located in Lebanon – where the trial judge determined that the divorce proceedings in Lebanon had disposed of the parties’ property in that country – where the wife contended that the Lebanese courts did not have the power to make orders in respect of all of the parties’ property – where that contention had founded a number of appeals filed by the wife in Lebanon – where each of those appeals was unsuccessful – where the husband initially sought an order summarily dismissing the wife’s application for property orders – where the trial judge dismissed that application but made an order permanently staying the proceedings on the basis that Australia was a clearly inappropriate forum – where, after the close of submissions, the trial judge sought further written submissions on the application, if any, of res judicata – where the wife alleges both actual and apprehended bias on a number of bases – where the wife alleged that the trial judge, having previously determined the wife’s application for divorce adversely to her, ought not have heard the husband’s application for summary dismissal – where the wife further contended that the trial judge had prejudged the matter and this was evidenced by him having suggested that forum non conveniens and res judicata might be applicable – whether there was any bias (either actual or apprehended) on the part of the trial judge – where the wife’s legal representative first raised the issue of forum and where the trial judge sought submissions, which were forthcoming, from both parties on the applicability of res judicata – no error demonstrated. FAMILY LAW – APPEAL – PRACTICE AND PROCEDURE – where the trial judge determined that the wife needed to seek leave pursuant to s 44(3) of the Act to proceed with her application for property orders out of time – where subsequent to the hearing of the appeal, Anderson & McIntosh (2013) FLC 93-568 was delivered – where that judgment made plain that s 44(3) does not apply to divorces obtained overseas – where neither party challenged the trial judge’s application of s 44(3) – where Anderson & McIntosh (2013) FLC 93-568, whilst delivered after the hearing of this appeal, merely confirmed the application of s 44(3) at the time the wife filed her application for final property orders and at the time his Honour determined that s 44(3) applied and that leave ought not be granted – where his Honour’s determination constituted an error of law – appeal allowed in part – order refusing leave set aside. |
| Alan Neuss v Magistrates Court (Victoria) [2013] VSC 321 Anderson & McIntosh (2013) FLC 93-568 Hedley & Hedley (2008) FLC 93-413 Henry v Henry (1996) 185 CLR 571 In the Marriage of Emamy and Marino (1994) FLC 92-487 Johnson v Johnson (2000) 201 CLR 488 Richardson & Richardson [2008] FamCAFC 107 Taffa & Taffa (2010) FLC 93-452 |
| Family Law Act 1975 (Cth) Family Law Regulations 1984 (Cth) |
| APPELLANT: | Mrs Taffa |
| RESPONDENT: | Mr Taffa |
| FILE NUMBER: | SYF | 5067 | of | 2000 |
| APPEAL NUMBER: | EA | 46 | of | 2012 |
| DATE DELIVERED: | 23 June 2014 |
| PLACE DELIVERED: | Brisbane |
| PLACE HEARD: | Sydney |
| JUDGMENT OF: | May, Murphy, Benjamin JJ |
| HEARING DATE: | 2 December 2013 |
| LOWER COURT JURISDICTION: | Family Court of Australia |
| LOWER COURT JUDGMENT DATE: | 13 March 2012 |
| LOWER COURT MNC: | [2012] FamCA 181 |
REPRESENTATION
| SOLICITOR FOR THE APPELLANT: | Mr Aslan of Alfotern Solicitors commencing in the hearing and the Appellant later on her own behalf |
| COUNSEL FOR THE RESPONDENT: | Ms Boyle |
| SOLICITOR FOR THE RESPONDENT: | Legal Aid NSW |
Orders
Leave to appeal in respect of the Amended Notice of Appeal filed on 28 November 2012 be granted.
The Appeal be allowed in part.
Paragraph 2 of the Orders of Le Poer Trench J made on 13 March 2012 be set aside.
There be no order as to costs.
IT IS NOTED that publication of this judgment by this Court under the pseudonym Taffa & Taffa has been approved by the Chief Justice 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: EA46 of 2012
File Number: SYF5067 of 2000
| Mrs Taffa |
Appellant
And
| Mr Taffa |
Respondent
REASONS FOR JUDGMENT
By an Amended Application in a Case filed on 20 June 2011, the husband sought orders that the wife’s Initiating Application for settlement of property and spousal maintenance orders (filed 26 May 2000) be dismissed summarily or, in the alternative, permanently stayed. The husband’s application for summary dismissal was unsuccessful, but on 13 March 2012, Le Poer Trench J permanently stayed the wife’s application, having found that the Family Court of Australia was a “clearly inappropriate forum”.
Subsequent to the conclusion of the trial, his Honour sought, and received, submissions from each of the parties as to the application of res judicata. His Honour concluded, ultimately, that the wife’s application was also estopped by the application of that doctrine; his Honour concluded that orders made as part of the granting of a divorce in Lebanon gave rise to the estoppel.
In the alternative to the conclusions just referred to, his Honour proceeded to determine that, in any event, the wife required leave to institute her proceedings pursuant to s 44(3) of the Family Law Act 1975 (Cth) (“the Act”) and, for reasons outlined by his Honour, leave should be refused.
The result of those findings was the following orders from which the wife now appeals:
1.The wife’s application for property orders and lump sum spousal maintenance is stayed.
2.In the alternate to order (1) hereof the wife’s application to commence property and spouse maintenance proceedings out of time is dismissed.
…
The wife did not seek leave to appeal. Nor did either party address the issue until raised by the Court.
Is Leave to Appeal Required?
Each of the parties indicated, ultimately, that they consented to leave being granted. The parties’ consent is, of itself, not sufficient; the granting of leave is a statutory requirement which stands as a bar to the statutory remedy of appeal and should be granted or refused by reference to principle. (The parties’ agreement may, however, be a factor in determining, ultimately, that the interests of justice require the granting of leave).
Section 94AA of the Act provides that leave is required in respect of “prescribed decrees”. That expression is defined, relevantly, in Regulation 15A of the Family Law Regulations 1984 (Cth) as “an interlocutory decree…” In turn, the definition of “decree” (in s 4(1) of the Act) includes “an order dismissing an application” and a “refusal to make a decree or order”.
As has been seen, the trial judge held that the proceedings should be stayed not only on the basis of Australia being a “clearly inappropriate forum” but also on the basis of res judicata. In Alan Neuss v Magistrates Court (Victoria) [2013] VSC 321, Landsdowne AsJ held, as part of an extensive review of the authorities on the question of what constitutes an interlocutory decree necessitating leave, that a permanent stay granted by application of res judicata was not interlocutory.
Otherwise, the weight of authority firmly favours an order for permanent stay made on a basis other than res judicata being an interlocutory decree (see, Alan Neuss at [40]-[46]). It has been held specifically in this Court that an order staying a proceeding on the basis that the Australian court is not the appropriate forum is an interlocutory decree (see, In the Marriage of Gilmore (1993) FLC 92-353).
As to whether leave is required to appeal a refusal to grant leave per s 44(3), since this Court in In the Marriage of Emamy and Marino (1994) FLC 92-487 overturned the decision in In the Marriage of Thallon (1992) FLC 92-322, this Court has consistently held that leave is required to appeal an order refusing leave pursuant to s 44(3) (see, for example, Hedley & Hedley (2008) FLC 93-413; Richardson & Richardson [2008] FamCAFC 107; Sharp & Sharp [2011] FamCAFC 150).
In our view, to the extent that the stay ordered by his Honour was based on his finding that Australia was an inappropriate forum and given the alternate order made by his Honour was a refusal to grant leave pursuant to s 44(3), leave to appeal those orders is required. A consideration of whether leave should be granted should await a consideration of the merits of the appeal in the event that leave is granted.
The Grounds of Appeal
The grounds of appeal were drafted by the wife herself as was the written outline of argument. She is, it appears, legally trained in Lebanon. A solicitor represented the wife for a portion of the hearing before us (the wife having dispensed with his services during the hearing) and tendered without objection an outline of argument that supplemented the wife’s earlier document.
In deference to the efforts of the wife, but also to illustrate the difficulties confronted by this Court in conceptualising properly and addressing the issues raised, it is appropriate to set out in full the grounds contained in the Amended Notice of Appeal filed on 28 November 2012[1]:
[1]Any errors contained in the extracts from the wife’s material, including her solicitor’s written submissions, quoted in these reasons appear in the original.
1.By hearing and determining the Appellant’ divorce application and making findings per His Honour written judgment His Honour erred in that he placed himself in a position where He could not, and should not have taken any further conduct of the matter and related proceedings let alone determine interlocutory proceedings, seeking dismissal of the Appellant’s property and maintenance settlement application and by doing so His Honour, wittingly or unwittingly denied the Appellant natural justice and procedural fairness.
2.By not disqualifying Himself from hearing interlocutory summary dismissal application of the Appellant’s Property settlement and maintenance application His Honour erred in law and this error was compounded by His Honour affording the Respondent the opportunity to amend the summary dismissal application and suggesting the required amendments to be made to the said application namely; order for permanent stay and order for inappropriate forum being the two amendments upheld by His Honour as per judgment delivered on 13 March 2012, dismissing the Appellant application.
3.On any reading of transcript of hearing on 14 June 2011 comments made by His Honour during the said hearing constituted adverse prejudicial interference with the Appellant’s application and that adverse prejudicial interference is discernible from His Honour’s final judgment delivered 13 March 2012 and in circumstance the said judgment constituted denial of natural justice. This adverse prejudicial interference was also manifestly and sufficiently occurred by His Honour giving no adequate comments to the Appellant at that day and by doing so His Honour denied the Appellant natural justice and procedural fairness.
4.By asserting that the parties made deliberate choice to bypass Australian legal system and instead chosen the Lebanese legal system to effect divorce and property settlement His Honour erred;
(i) by failing to understand and appreciate cultural Islamic issues with which the Appellant had to and expected to comply with.
(ii) by failing to give appropriate weight to the fact that the Appellant could not obtain formal divorce from the religious institutions in Australia without having Jafarite religious Court in Lebanon formalizing and sanctioning the said divorce.
(iii) by failing to appreciate that dowry and maintenance in Islamic Cultures, including the Shia faith, are prerequisite to the marriage contract and as such do not and could not constitute property settlement of assets accumulated by the Appellant and Respondent during the marriage.
(iv) by failing to understand and give appropriate weight to the ramification of judgment finding that payment by a husband of customary and notional amounts often stated to be dowry and maintenance in the various Islamic faith’ cultural marriage contract could be argued as a form of estoppels or off sets to a wife commencing application for property and maintenance proceedings in Australian Courts, theoretically, even if the said wife is born in Australia and having made the greatest contributions to the asset pool during the marriage.
(v) by giving undue weight to the Arabic wordings and English interpretation of the said wordings forming the three judgments of the Shia Religious Courts in Lebanon.
5.Given the fact the proceedings with which His Honour was dealing was of interlocutory nature, being summary dismissal application, His Honour erred in law by not given appropriate weight to annexure ‘C’ in the Appellant’s Affidavit sworn 16 May 2011 being document dated 10/03/2011 in which the Appellant sought opinion to clarify the question whether the Jafarite Religious Court decision (decree) of 24/11/1998 also made order in relation to parties’ properties.
6.His honour erred in law by failing to insist on clarification of the question as to whether Canonical decisions and/or decrees by any of 16 plus officially sanctioned religious in Lebanon (including Shia Religious Courts), takes precedence over the official Lebanese Judicial and Appellate Courts (based on Roman Law) that constitutes the Lebanese legal system.
7.His Honour erred in law by allowing the Respondent to place reliance upon annexures as per paragraphs 21 and 50 in the Appellant’s Affidavit sworn 14 March 2011 when the said Affidavit was not formally read or relied upon by the Appellant during the hearing and when the Respondent objected to the inclusion of the said Affidavit and by doing so His Honour should have afforded the Appellant the opportunity to formally read the said Affidavit and give it the due weight.
8.His Honour erred in law by giving undue weight to the assertion and belief that if He were to make orders as per the relief sought in the Appellant’s applicant, or any amended version of the said relief, the same could not enforced in Lebanon.
9.By inviting the Appellant and the Respondent to make submissions based on the doctrine of re judicata at very late stage in formulating His written judgment such invitation constituted belated recognition and realisation by His Honour that suggested amendments to the Respondent’s summary dismissal application as per appeal point 2 herein and the argument put forward by the respondent in support of the said amendments were deficient and His Honour wanted to ensure all arguments pertaining to summary dismissal application were agitated in order to support His already formulated decision.
10.His Honour erred in law by failing to make allowance to the unique situation of the Appellant’s application when applying section 44(3), 44(4) and 104 of the Family Law Act to the facts.
11.His Honour erred in law by placing on equal footing the Appellant’s property settlement and maintenance application filed on 26 May 2000 with divorce application filed in Jafarite Court in Lebanon on 24 November 1998.
12.His Honour erred in law by giving His own interpretation of Article 1016 of the ‘Lebanese Act’ relating to enforcement of foreign judgments in Lebanon. Likewise His Honour erred in law by misinterpreting Articles 18 and paragraphs 4 & 5 of Article 17 of the ‘Lebanese Act’ pertaining to the power and scope of Sharia Laws as that power relates to Religious Court’s jurisdiction over property settlement.
13. His Honour erred in law by equating the Appellant property and maintenance application filed on 26 May 2000 with divorce application filed in Jafarite Court in Lebanon on 24 November 1998 as matters falling within the compass of the doctrine of re judicata as determined in the matter of Miller v Caddy which His Honour applied.
14.His Honour erred in law and given undue weight to the assumption that it would be open to the Lebanese Courts to disagree with decisions of the Family Court of Australia finding on the question and basis of jurisdiction and to disregard or refuse to enforce any judgment from the said Family Court and as such by insisting to proceed with her application the application the Appellant’s action would be tantamount to abuse of process.
Before us, the wife’s solicitor dealt with grounds 1 to 4 together. They assert bias and procedural unfairness. As the argument proceeded, it became clear that grounds 7 and 9 also had at their core assertions of procedural unfairness.
Allegations of bias and of a lack of procedural fairness are, axiomatically, referable to the conduct of the proceedings before his Honour and, if established, constitute errors of law requiring the intervention of this Court. With all due respect to the wife, the appealable error/s asserted in the remaining grounds of appeal is less clear. Again with respect to the wife and to her solicitor, the assertions of error are made no clearer by the written outline of argument (apparently also prepared by the wife herself) or the subsequent written and oral argument by her solicitor and, later, herself.
Partly, at least, the written and oral arguments appear to repeat, to one degree or another, arguments raised earlier by the wife in her application for divorce which was dismissed by his Honour and in her appeal against that decision to this Court which was also dismissed. They are, in turn, to one degree or another, the same arguments raised in both first instance and appeal proceedings in Lebanon.
In order to properly understand the arguments, it will be necessary to give some detail of the historical facts found to be relevant by his Honour and to look at the issues raised before his Honour and his Honour’s reasons. That will, however, only be necessary if the challenges based on bias and procedural unfairness embraced by grounds 1 to 4, 7 and 9 are rejected. It is to those grounds that we first turn.
Bias or Procedural Unfairness – Grounds 1 to 4, 7 and 9
Bias?
As his Honour recorded (at [24]), “[t]he husband’s primary application is for summary dismissal of the wife’s case.” That application was dismissed. That is, it was decided favourably to the wife. The wife asserts however, that his Honour was biased or that she was not accorded procedural fairness because, it is said, his Honour had prejudged the matter.
The oral arguments before this Court included the concession that no application was made to the trial judge by the wife’s then solicitor for his Honour to recuse himself and the further concession that no issue of bias was otherwise raised or intimated before his Honour.
The solicitor for the wife on appeal made the remarkable oral submission that the husband’s trial counsel ought to have raised with the trial judge the alleged bias against the wife. This was said to emanate from the husband’s counsel having “an overriding duty to the court”. The argument merely needs to be stated in that form for it to be dismissed.
The solicitor for the wife then argued that the wife’s then solicitor “failed professionally” in not raising the issue of bias before his Honour because “it takes a lot of courage” to raise such an assertion. No evidentiary foundation was provided to support that contention. It was not raised before his Honour. In any event, each of the propositions inherent in the statement should be firmly rejected. It does not take courage for a practitioner to raise that issue; it requires the performance of a practitioner’s duty to their client. However, the practitioner’s duty to the court demands that the assertion is made only if it has a proper foundation. No proper foundation for any such claim has been identified before this Court.
In terms, grounds 1 and 2 suggest that his Honour’s involvement in earlier proceedings is the only basis upon which bias is alleged. That is reinforced by the written submissions.
His Honour heard the wife’s earlier proceedings for divorce in which she was unsuccessful. The solicitor’s written submissions (par 3 (i)) refer to “…the 21 January 2009 decision invol[ving] hearing [before his Honour] on six (6), yes on six (6) prior occasions…” Contrary to what is there asserted, four of those pertained to the prior divorce proceedings, two to the proceedings the subject of this appeal. What is not said there but which is the fact is that four of those hearings comprised the final hearings before his Honour, with the other two involving his Honour, to the benefit of both parties, attempting to ready each matter for final hearing and delineate with precision the issues to be heard.
Paragraph 3 of the solicitor’s written submissions contains other contentions that appear to found an assertion of bias. Examples include references to “[c]omments made by His Honour…”; “[s]elective readings of snippets from affidavits…”; and, “…cursory choice of annexures…” While some of those matters pertain, at least in part, to other grounds, no further particularisation or amplification of those matters is given as to how they reflect bias. They appear to be offered as self-evident of bias. They are not. To the extent that bias – whether actual or apprehended – is asserted by reference to any, or the combination, of the matters there referred to, it should be rejected.
Otherwise, the terms of grounds 1 and 2, in combination with the written and oral submissions made for the wife posit his Honour’s prior determination of the divorce proceedings and his presiding over mentions as the basis for suggesting that his Honour was neither “…unbiased or [a] disinterested decision maker” (wife’s summary of argument, 24 January 2013, p 1).
We have been taken to nothing said by his Honour during any of those earlier proceedings, nor anything said in the reasons dismissing the wife’s divorce application, that suggests his Honour would not bring an impartial mind to the current proceedings. Indeed, as both his Honour’s reasons and the reasons of this Court on the appeal from that decision each make clear, the result of those proceedings very much depended upon an analysis of the evidence of two expert Sheikhs and findings made as a consequence, rather than on any adverse credit findings made as against the wife (or, for that matter, the husband).
The submissions of the wife that bias (whether actual or apprehended is not made clear) devolves axiomatically from the fact that his Honour heard and determined the earlier proceedings and conducted mentions should be firmly rejected for the reasons advanced by Mason J in Re JRL; Ex parte CJL (1986) 161 CLR 342 at 352:
It seems that the acceptance by this court of the test of reasonable apprehension of bias in such cases as Watson and Livesey has led to an increase in the frequency of applications by litigants that judicial officers should disqualify themselves from sitting in particular cases on account of their participation in other proceedings involving one of the litigants or on account of conduct during the litigation. It needs to be said loudly and clearly that the ground of disqualification is a reasonable apprehension that the judicial officer will not decide the case impartially or without prejudice, rather than that he will decide the case adversely to one party. There may be many situations in which previous decision of a judicial officer on issues of fact and law may generate an expectation that he is likely to decide issues in a particular case adversely to one of the parties. But this does not mean either that he will approach the issues in that case otherwise than with an impartial and unprejudiced mind in the sense in which that expression is used in the authorities or that his previous decisions provide an acceptable basis for inferring that there is a reasonable apprehension that he will approach the issues in this way. In cases of this kind, disqualification is only made out by showing that there is a reasonable apprehension of bias by reason of prejudgment and this must be “firmly established”: Reg v Commonwealth Conciliation and Arbitration Commission; Ex parte Angliss Group; Watson; Re Lusink; Ex parte Shaw. Although it is important that justice must be seen to be done, it is equally important that judicial officers discharge their duty to sit and do not, by acceding too readily to suggestions of appearance of bias, encourage parties to believe that by seeking the disqualification of a judge, they will have their case tried by someone thought to be more likely to decide the case in their favour.
(Bold emphasis added. Footnotes omitted).
Nothing to which we have been taken, nor anything emerging from our own reading of the record suggests any foundation for an assertion of actual or apprehended bias, let alone a “firmly established” foundation.
Procedural Unfairness?
Apart from the issue of bias, grounds 1 to 4 otherwise also allege a lack of procedural fairness to the wife.
The substance of the assertions appears to rest on comments made by the trial judge during the hearing below and in a procedural hearing held on 14 June 2011, some six weeks prior to the trial. Five separate parts of the transcript are referred to. Four of those passages relate to the procedural proceedings which took place on 14 June 2011, the fifth to what was said during the final hearing on 26 July 2011. It is asserted that those passages alone and together or “…any reading of the transcript of hearing on 14 June 2011 … constituted adverse prejudicial interference…” (wife’s summary of argument, 24 January 2013, p 2).
Further, or perhaps alternatively, it is contended, it seems, that procedural unfairness to the wife results from his Honour having suggested an alternative “cause of action” to the husband (i.e. that Australia was a clearly inappropriate forum). The wife’s written submissions refer to the trial judge “spoon feeding” the husband’s legal representative.
As best as it can be understood from the grounds and the argument, the assertion is, it seems, that but for the trial judge suggesting an alternative cause of action, his Honour’s reasons indicate that the wife would have been successful in defeating the husband’s summary dismissal claim and the only reason she was not successful was because of a cause of action not raised by the husband but by the trial judge with the intention of favouring him to the detriment of the wife.
Reference to the passages of transcript relied upon by the wife and a reading of the transcript of the 14 June 2011 hearing as a whole and those parts of transcript of the final hearing included in the appeal record reveals that the submissions are based on a false premise and otherwise have no foundation.
The Transcript Passages Relied Upon By the Wife
The first of the five passages[2] relied upon by the wife is as follows.
HIS HONOUR: Let me just see if I can find that first. It is possible, isn’t it, that you may not succeed on your application for a summary dismissal but then have an argument of inappropriate forum?
(Transcript of proceedings, 14 June 2011, page 4, lines 44-46)
[2]Four of the references by the wife refer to one line of transcript. Further context is given to them in the quoted extracts.
That question was addressed to counsel for the husband and was answered in the affirmative.
The second passage referred to, again in an interchange between the bench and then counsel for the husband, is:
MS FINN: Or a dismissal of her application on that basis.
HIS HONOUR: Well, I mean, you get into this area of what they call permanent stays which is tantamount to a summary dismissal. But the application that was filed on 25 February seeks one order only and that is for summary dismissal. And I’m wondering, in light of what you’ve told me today and the range of remedies that you’re seeking, whether you want an opportunity to amend that application to include a stay application for – on the basis of inappropriate forum and any other interlocutory remedies that you might be seeking.
(Transcript of proceedings, 14 June 2011, page 5, lines 30-39)
The next passage referred to is:
MS FINN:No, we wouldn’t need further evidence, your Honour, although I do note that in relation to the summary dismissal application, it’s the wife’s evidence that the court needs to look at rather than ours is my understanding. But certainly ‑ ‑ ‑
HIS HONOUR: Yes.
MS FINN:‑ ‑ ‑ that affidavit covers what we need to tell the court.
(Transcript of proceedings, 14 June 2011, page 6, lines 15-21)
The wife refers to a number of further statements at page 10 of the transcript of proceedings of 14 June 2011. The reference by the wife (“Appeal Book Volume 2, page 268, lines 5, 10, 15 and 20”) tends to suggest that each of those individual lines are the subject of a complaint. Yet they need a context and what follows is what appears from lines 3 through 35. This interchange occurs between the then solicitor for the wife and the bench:
MR BARBER: I think this is probably one of the cases - it would probably be more appropriate for a High Court decision, your Honour, rather than just a decision in the Family Court at this stage.
HIS HONOUR: It could be. Yes.
MR BARBER: But it is a complex area. I have looked at it very seriously and there are quite a lot of issues. And at some stage in the future I hope some of these issues will be determined by someone who can - because, as you said, your Honour, there are differing competing laws and people live their lives in different parts of the world and they expect certain things from different jurisdictions and that complicates things to no end. I understand that.
HIS HONOUR: Well, you’re going to start off getting a decision from me.
MR BARBER: Yes.
HIS HONOUR: And then you can progress up through the ranks and see where it goes. I remember in the hearing in relation to the divorce we had evidence from two - at least two ‑ ‑ ‑
MR BARBER: Experts.
HIS HONOUR: ‑ ‑ ‑ experts. I was going to say Imams. Were they Imams or ‑ ‑ ‑
MR BARBER: That’s right. I understand that.
HIS HONOUR: Sheikhs or ‑ ‑ ‑
MR BARBER: Sheikh.
HIS HONOUR: Yes. And, I mean, it was very interesting, I’ve got to say. It was very interesting.
In addition to those passages from the procedural hearing on 14 June 2011, the wife also makes reference to a passage from the transcript of the trial. The specific passage referred to is said to occur at line 10. Again, a little more context (lines 3-12) is given:
MR BARBER: Well, your Honour, I don’t think this court should be concerned – I know, your Honour, you have got to be minded of the fact that whether or not the orders that this Honourable Court makes are going to be useful or not. I understand that. That should not be your primary concern. It’s up to her to enforce the orders in Lebanon.
HIS HONOUR: No, no, no. That’s not quite right. It is in one sense but this court – it would be an abuse of process to have this court hear and determine a matter and make orders in favour of your client in the certain knowledge that they could never be enforced.
(Transcript of proceedings, 26 July 2011, page 20, lines 3-12)
It is crucial to give some historical context to those exchanges:
§First, in his Honour’s reasons dismissing the wife’s application for divorce delivered some 2.5 years prior to the proceedings the subject of this appeal, his Honour flagged (at [46]) the possibility of an argument about forum;
§Secondly, in the written argument filed by the wife in response to the Application in a Case filed initially by the husband which sought an order only that the wife’s case be summarily dismissed, the wife contended specifically that “the Australian courts are an appropriate forum”. On her own case, forum was potentially an issue to be argued;
§Thirdly, the proceedings before his Honour on 14 June 2011 were a procedural hearing. The transcript, and the orders made that day, plainly reveal the purpose of those proceedings: to delineate the issues to be decided at the final hearing and to ensure readiness for that hearing. The wife was represented at those proceedings. They occurred some six weeks prior to the trial. It was clearly indicated by counsel for the husband that forum would be an issue;
§Crucially, in light of the central allegations made in respect of his Honour’s alleged conduct, it was the husband’s counsel who initiated the reference to forum, not his Honour as alleged by the wife;
§In any event, in fairness to the wife, his Honour required an Amended Application in a Case to be filed so as to specify precisely the case sought to be agitated by the husband. That was done on 20 June 2011, some five weeks prior to the trial. It is not said that the wife was prejudiced and it is not clear how, in light of the circumstances just outlined, she could have alleged any prejudice.
Finally, and by no means insignificantly, it seems clear that his Honour had, with all due respect to the solicitor who appeared on behalf of the wife at the mention on 14 June 2011, reservations about his experience and/or expertise. His Honour was at pains to ensure that the solicitor understood the case that was being made against the wife by reference to the filed documents and specifically sought to ensure that the solicitor for the wife understood the issues to be agitated at the trial some six weeks later, including the issue of forum. Equally, the solicitor representing the wife was at pains to assure his Honour that he did understand those issues:
HIS HONOUR: Now, Mr Barber, will you be appearing on the hearing?
MR BARBER: I understand I will, your Honour, yes, at this stage.
HIS HONOUR: All right. And you understand what the husband is seeking to establish is that the wife could not possibly succeed on her application for property orders, number one. And, secondly, if she is not successful in having - sorry, if he is not successful in having that application summarily dismissed his backup application, so to speak, is that it ought not be heard in this court in Australia. It is a matter which should be heard in Lebanon. Now, the little bit of memory I’ve got left of this case was that there was no property in Australia. Is that right?
MR BARBER: There is no property in Australia, no, your Honour. All the property is in Lebanon.
…
HIS HONOUR: Right. Well, I won’t try and teach you to suck eggs, but it’s a fairly complex area of law.
MR BARBER: It is.
HIS HONOUR: And I know I’m going to have to be doing some study on it, so I am assuming that everybody is as well and that we deal with this with our eyes open.
MR BARBER: Yes, your Honour. I understand the complexity of it and I understand the complexity of the jurisdiction, but also I understand the complexity of the funds available to run a case like this.
(Transcript of proceedings, 14 June2011, page 9, lines 17-46)
The assertions of a lack of procedural fairness based on the passages referred to by the wife have no foundation. Nor is there anything whatsoever to suggest either in the procedural hearing on 14 June or in the final hearing on 27 July 2011 that procedural unfairness to the wife attended either or both of those hearings.
For the sake of completeness, we should also record that, rather than suggesting prejudgment or any favouring of the husband, most, if not all, of the specific comments to which reference is made by or on behalf of the wife, are not at all directed to the merits of the wife’s case. Rather, in respect of proceedings that commenced some 12 years prior to his Honour dealing with the matter, his Honour was – properly - concerned to ensure that all issues live between the parties were addressed before him so that they might be heard and determined.
Again, a statement made by the High Court has, with respect, particular resonance to the assertions made by the wife. In Johnson v Johnson (2000) 201 CLR 488, Gleeson CJ, Gaudron, McHugh, Gummow and Hayne JJ said at [13]:
…At the trial level, modern judges, responding to a need for more active case management, intervene in the conduct of cases to an extent that may surprise a person who came to court expecting a judge to remain, until the moment of pronouncement of judgment, as inscrutable as the Sphinx ... Judges, at trial or appellate level, who, in exchanges with counsel, express tentative views which reflect a certain tendency of mind, are not on that account alone to be taken to indicate prejudgment…
It will be clear from what we have said that those comments are all the more apposite in this case by reason of the fact that we do not consider that his Honour’s comments – even taken at their highest for the wife’s case on appeal – could even be described as his Honour “express[ing] tentative views” or that they reflected any “tendency of mind”.
To the extent that ground 4 strays beyond issues of procedural fairness, it will be taken up in the discussion of the remaining grounds later in these reasons.
“Select Documents” – Ground 7
Although ground 7 was not grouped with grounds 1 to 4 in the wife’s arguments, it is, it seems, directed to precisely the same issue. The solicitor’s written submissions repeat the submissions made in respect of grounds 1 to 4 and assert, specifically, that:
1.In substance what the appellant is asserting in this ground is that His Honour relied on select documents from affidavit evidence filed in court not for the specific purpose of dealing with motion for summary dismissal hearing. By doing so His Honour denied the appellant procedural fairness. Beside the submissions made in the appellant’ summary of argument the appellant repeats the submissions in relation to grounds 1, 2, 3 and 4 above …
2.The appellant submits that it is irrelevant whether there is/are any rule/s or practice applicable to situation were snippets of evidence are relied upon to support argument. The reality is that in the circumstance where His Honour was fully aware that by upholding an order for permanent stay means the end of the appellant case. Justice should not only be done but MUST be seen to be done.
(Emphasis in original).
With all respect to the wife’s initial submissions and the subsequent written and oral submissions on her behalf, it is by no means clear to us how any procedural unfairness is said to attend what his Honour did or did not do. It seems that the assertion is, in truth, one of bias; namely, that his Honour was selective in admitting evidence so as to bring about a prejudged result in favour of the husband.
The wife’s written submissions contend that it was open to her to not rely upon a particular affidavit in the hearing before his Honour. So much is true. However, that does not prevent the other party from using previous sworn evidence by the wife in the proceedings provided it is relevant and otherwise admissible.
The wife did not rely upon her affidavit of 14 March 2011 (that is, an affidavit filed some two months prior to an affidavit upon which she did rely). His Honour makes clear, at [41] of the reasons that “[f]or the purpose of considering the application for summary dismissal I will have regard to paragraphs 21 and 50 of the wife’s affidavit sworn 14 March 2011…” (emphasis added). There is no suggestion that the evidence was relevant to, or used by, his Honour in respect of any part of the proceedings other than the application for summary dismissal. Even then, as the succeeding paragraphs of the reasons indicate, the paragraphs were used to illuminate a prior inconsistent statement.
It remains unclear how the admission or use of those paragraphs in respect of a part of the proceedings decided favourably to the wife constitutes or illuminates any prejudgment or procedural unfairness to her.
No other error is said to attend the use of the relevant paragraphs. For the sake of completeness, it should be observed that if it is suggested that some other error is demonstrated (for example taking account of irrelevant matters), any such error can only pertain to a part of the proceedings with which the wife does not take issue.
Prejudgment and Res Judicata – Ground 9
Like ground 7, the central contention in ground 9 is also directed to an assertion of prejudgment. In effect, it is asserted that by inviting both parties to make submissions – subsequent to the conclusion of the hearing – in respect of the application, if any, of res judicata, his Honour was doing nothing more than providing an opportunity to the husband to reinforce a prejudged outcome.
That central contention is summed up in the wife’s submissions which contend that “[h]is Honour wanted to ensure all arguments pertaining to summary dismissal application were agitated in order to support His already formulated decision.” The written submissions filed by the wife’s solicitor contend, in this respect, that:
1.The appellant wishes to state for the record that the reference in the appellant’s submissions on the various grounds to summary dismissal application is the inclusion and presumed knowledge that the orders sought in the respondent’ application (motion) was order for summary dismissal and costs. The amendment to include order for permanent stay was purely His Honour’ suggestion when the motion was before him in first instance. Despite this fact being common knowledge this point appears to have been missed by counsel for the respondent or at least so in the respondent’s summary of argument.
2.The appellant makes the point that had His Honour not allowed His suggested amendment to the motion the respondent’s motion would have been dismissed.
(Emphasis in original).
It is, with respect, not entirely clear what is meant by those submissions, although the oral submissions made by the solicitor clearly suggest that the submissions are, effectively, a repeat of the allegations earlier made but in respect of his Honour’s actions in “adding” res judicata after the conclusion of the hearing.
The circumstances in which the issue of res judicata was raised by his Honour are addressed in the reasons (at [194] and following). The letter written by his Honour’s Associate to both parties seeking further submissions is included in the reasons.
It is not asserted that his Honour took into account any evidence that was not fully canvassed during the trial. Nor is it suggested that his Honour had reference to any extraneous matters. Indeed, his Honour makes specific reference to the fact that both parties included with their submissions on this issue “…topics outside of that which I have invited…” Having specifically recognised that, his Honour said “…I have ignored [those topics] as a matter of fairness to each party. No application to re-open the case has been made, nor any application made that I consider require further submissions from either party” (at [195]).
Having decided that the evidence as presented at the trial raised, potentially, the application of the doctrine of res judicata, his Honour, quite properly, sought submissions from each of the parties (each of whom was represented) in respect of that issue. Having considered the matters raised by each of the parties relevant to that issue, and only those matters, his Honour proceeded to reach his conclusion.
In a trial conducted under difficult circumstances in the context of extensive earlier litigation between the parties in two countries and an application for final orders filed almost 12 years previously, his Honour was, as it seems to us, at pains to ensure that all issues raised by the evidence were dealt with. No new evidence was considered or referred to by his Honour; there was no question of reopening. Rather, his Honour afforded both parties an equal opportunity to make submissions on a matter not referred to during trial submissions but which his Honour considered arose from the evidence before him.
No prejudgment is demonstrated. Nor is any other error demonstrated in respect of this ground.
Conclusion – Grounds 1 to 4, 7 and 9
Nothing to which we have been taken nor anything emerging from our own reading of the record suggests any basis for the assertions of bias (either actual or apprehended) nor, specifically, that his Honour had prejudged the issues.
Nothing advanced by the wife is persuasive of any procedural unfairness nor does our own scrutiny of the record suggest any.
Grounds 1 to 3, 7 and 9 fail. As noted earlier, to the extent that ground 4 strays beyond issues of procedural fairness, it will be addressed with the remaining grounds later in these reasons.
That conclusion necessitates the consideration of the remaining grounds.
Overview of the Remaining Grounds and Reasons
At [3] of the reasons, his Honour incorporated background facts “…which are common to the applications currently being considered.” Those facts are important in understanding the context of the proceedings which are the subject of this appeal. It is essential to give some background both to the proceedings before his Honour and the events which preceded them so as to properly contextualise the remaining grounds of appeal.
The Parties’ Relationship and Other Proceedings
The husband and wife married in Kuwait. That marriage was subsequently registered in Lebanon in about 1975. The parties resided in Lebanon for 10 years until 1985, at which time they relocated to Australia. Dispute attends the date of the parties’ separation. The husband maintains that the parties separated in early 1996. The husband also asserts earlier separations; in large part, it seems, these are denied by the wife. In turn, the husband denies that there was any period of reconciliation after 1996 as the wife contends.
In the event, the husband left Australia in January 1999 with the intention of living permanently in Lebanon. In March 1999 he married his current wife in that country. The husband and his current wife lived in Lebanon for about seven years until war broke out in July 2006 which resulted in the husband and his wife being repatriated to Sydney. He and his current wife have resided in Australia since July 2006.
In late 1998 the parties underwent a religious ceremony at an Islamic Centre in western Sydney that can be described as a form of religious divorce within the Islamic faith. As the trial judge recorded (at [8]), both parties accepted that “…notwithstanding that ceremony, a court process was necessary to have their marriage legally dissolved.”
Subsequent to the religious ceremony just referred to, the parties attended the Lebanese embassy in Sydney and executed a Power of Attorney. That document authorised their respective lawyers in Lebanon to proceed with a divorce application which, apparently, had been filed in that country. It appears to be accepted by both parties that, as his Honour found (at [9]-[10]), in November 1998 the parties were divorced in Lebanon by the Jaafarite Canonical Court. They were each represented by a lawyer in that proceeding.
Against the background of an existing divorce order in Lebanon, the wife made application for divorce in this country. As his Honour recognised (at [13] of his reasons in the divorce proceedings delivered on 21 January 2009) “…whether or not the wife’s application for divorce can proceed in this Court is dependent on whether this Court recognises the divorce granted in the Lebanon court on 24 November 1998.” His Honour concluded that it could be so recognised; the wife’s application for divorce was, thus, dismissed and the wife appealed that decision. This Court dismissed that appeal on 13 September 2010 (Taffa & Taffa (2010) FLC 93-452).[3]
[3]For reasons to be discussed later, it is relevant to observe that May and Murphy JJ were part of that Court and also sit on this appeal.
That Court recorded:
29.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.
During the timeframe embraced by those decisions, other proceedings were on foot in Lebanon. The trial judge recorded at [14] of the reasons in the proceedings the subject of this appeal:
In about 2000 the wife commenced appeal proceedings in the Lebanese Courts. Three judgments from the Lebanese Courts are now in evidence in this case. The judgments are from various levels of Appeal Courts in Lebanon. The dates of the judgments are 13 July 2000, 10 July 2001, and 29 December 2004. The wife was unsuccessful in each appeal. The wife’s ambition in each appeal has been to have the Lebanese Court set aside a property order made at the time the divorce was granted. The wife argues that the order, in the following terms, is not the equivalent of a property or spouse maintenance order which might be made in Australia. The order “Declared that neither party has any financial rights or liabilities towards the other”.
(Italics in original).
At the time of the hearing of the proceedings the subject of this appeal, it was, it seems, common ground that a further appeal had been lodged by the wife in Lebanon on 14 February 2005 and that the appeal had not been heard and determined (reasons at [15] and [105]).
In addition, his Honour found:
106.The wife has caused criminal and civil proceedings to be instigated against the husband in Lebanon. The husband says the wife falsely alleged that on 30 September 2000 he physically assaulted her. The husband has been found not guilty of an offence arising from those facts.
107.Following from that determination the wife lodged an appeal against the decision and also sought that the husband pay her damages in the sum of $60 million Lebanese Lira (approximately AUD $47,916) together with costs of $10 Million Lira. The wife’s appeal was dismissed and she was ordered to pay costs. The wife has not paid costs as so ordered. That determination was made on 23 June 2006. These facts are not put in issue by the wife. The husband denies he has ever assaulted the wife.
The Issues Joined Before His Honour and the Reasons
Central to the proceedings before his Honour to which this appeal relates and the issues on this appeal, his Honour found (at [10]) that “[t]he translated version of the [divorce order made by the Jaafarite Canonical Court] shows that not only was the divorce granted but that there was also an order made in respect of the parties’ property.” His Honour went on to find (at [11]):
The ability of the Jaafarite Canonical Court to make an all encompassing property order is a matter of dispute between the parties in the applications now under consideration. As will be seen later in this judgment, the wife’s case is that the Jaafarite Court’s powers are limited by legislation so that it can only consider and make orders in relation to “dowry and trousseau” and “alimony.”
(Italics in original).
Later, at [23], His Honour said:
It is clear from the wife’s case, now under consideration, that she asserts she would not be prevented from proceeding in a Lebanon Civil Court seeking property adjustment following the parties’ divorce. She argues that the words in the divorce order made in the Jaafarite Canonical Court on 24 November 1998 that “declared that neither party has any financial rights or liabilities towards the other” are restricted in application to “dowry and trousseau” and “alimony.” She argues that if she was forced to pursue her rights against the husband in Lebanon, her present financial circumstances would make such an exercise prohibitive.
(Italics in original).
Three exhibits comprising the translated judgments of the Jaafarite Canonical Courts were tendered before his Honour (Exhibit H1). The documents tendered by counsel for the husband were Exhibit K to the wife’s affidavit filed 15 March 2011. They were, then, part of evidence sworn to by the wife and offered as proof by her of what a Lebanese Court had adjudged.
When the tender was sought, the then solicitor for the wife interjected and said: “[f]rom what I understand [of] the legislation in the Lebanese Civil Jurisdiction, … the Jaafarite Court[s] have got absolutely no jurisdiction in relation to matrimonial property.” (transcript of proceedings, 26 July 2011, page 9, lines 45-47). That, of course, is part of the wife’s central contentions. When, understandably, his Honour cut short the solicitor’s attempt to give evidence from the bar table, his Honour enquired, again understandably, whether the wife intended to adduce expert evidence in respect of the contention purportedly made. Crucially, the solicitor conceded he did not.
His Honour referred to the judgments comprising Exhibit H1 in the reasons and made specific reference to an important extract from one of those judgments at [164]:
The appeal in the Lebanese Courts in 2000, which sought to clarify the terms of the divorce, explained that in the type of divorce sought by the parties, an “Al Bathel” divorce, the terms were set by the parties at the time of the divorce, including financial consideration for the divorce. The Jaafarite Court concluded:
And since “Al Bathel” was such that both represented parties declared that neither party has any monetary right against the other and since the sentence that neither party has any monetary right against the other clearly acquits the parties of any monetary obligations towards each other especially in relation to any matrimonial rights resulting from the marriage and what derives from these rights, and taking into consideration the authorisation issued from both parties and their encompassment of the civil and religious courts
Therefore … it has been decided that the “Al Bathel” as mentioned in the decree issued in the application for explanation and clarification, is inclusive of all monies payable to or will be payable to [Mrs Taffa] as against the so called [Mr Taffa] whether in her capacity as wife or divorcee is such that the divorcee husband is to be considered free of any financial obligations required due by reason of the marriage and divorce, regardless of the type of payment, location or Courts involved.
(Italics in original).
His Honour went on to record, again importantly, at [165]:
The Lebanese Court states that the financial settlement was a matter to be negotiated at the time of the divorce, and that the parties freed each other completely of financial obligation. The terms are not ambiguous, they are quite plainly set out. Subsequent appeals by the wife have not been successful.
Against that evidentiary background, his Honour recorded the central contentions of the parties in the proceedings before him, commencing with those made by the husband:
128.In relation to the question of whether the Lebanese Courts have the power to deal with property distribution arising from a breakdown in a marriage, as opposed to issues of dowry and maintenance, the husband draws the Court’s attention to Exhibit H1. In the first decision of the Lebanese Court contained therein, dated 13 July 2000, the court was asked to clarify what it meant when it said that “both parties declared that neither party had any monetary right against the other”. The clarification of the court stated that the original decision was “inclusive of all monies payable” and that the parties were “free of any further financial obligation” to each other. The wife appealed that decision on the basis that the Religious Court did not have the jurisdiction to determine all property matters, but only those related to dowry and maintenance. The decision, handed down on 10 July 2001, was that the Al Bathal divorce can legally include the rights incurred as a result of the marriage without those rights having to be specified or limited.
129.The husband submits that the current proceedings in this court are essentially the same as those which have gone before the Courts in Lebanon. The wife has pursued this claim through the Courts in Lebanon, and for this reason, the husband relies on the judgment in Henry at [37].
…
(Italics in original).
His Honour then recorded (at [139] and [140]) a number of submissions made by the wife in contending that Australia was not a clearly inappropriate forum, including that: “…she does not have the financial resources to travel to Lebanon in order to pursue an action there” (at [139]); that “…she lives in Australia and has maintained her residence in Australia since her arrival in 1985” despite visiting Lebanon since that date (at [139]); that both parties live in Australia and both receive benefits through social welfare in this country and the “…dependence of both parties on the social welfare of Australia shows a clear connection between the parties and the jurisdiction” (at [140]). His Honour also there noted the wife’s claim that the husband has not disclosed assets in Lebanon (at [141]).
Essential to the resolution of the proceedings, his Honour recorded the wife’s central contention (at [143]):
The wife further submits that the Religious Courts in Lebanon do not have jurisdiction to hear or determine the property matter insofar as it relates to property acquired throughout the marriage. The wife submits the Lebanese Religious Courts only have jurisdiction to determine matters related to dowry and maintenance. In her evidence, the wife draws the Court’s attention to attachment “A” of her Affidavit filed 19 July 2011, being a translation of articles 16, 17 and 18 of the Lebanese Act relating to the jurisdiction of the religious courts. She submits that Act does not list matrimonial property and thus determinations of the Courts in Lebanon on that topic, both past decisions and future applications, are invalid due to the lack of jurisdiction on the part of that Court. I pause here to note that in the appeals thus far prosecuted by the wife in Lebanon against the order of the Religious Court, she has not been able to convince any appellate court of this argument.
The Trial Judge’s Essential Findings in Context
It is important to bear in mind that, unlike the proceedings for divorce earlier heard before his Honour, in these proceedings his Honour was not required to make findings about the power of the Lebanese courts, nor to determine the meaning of the relevant passages of Lebanese law. Those questions were relevant only as part of the circumstances to be considered in reaching the decision as to whether Australia was a clearly inappropriate forum. As his Honour pointed out, the plurality said in Henry v Henry (1996) 185 CLR 571 (at 593):
…the question whether Australia is a clearly inappropriate forum is one that depends on the general circumstances of the case, taking into account the true nature and full extent of the issues involved.
That his Honour did in fact seek to take into account “…the full extent of the issues involved” and not merely those issues pertaining to the law and procedure of the Lebanese courts, is evident from his Honour’s extensive discussion of the contentions of each of the parties and his ultimate conclusions summarised at [146]-[173] of his reasons.
Many of the grounds of appeal challenge what his Honour said about Lebanese law or procedure or the meaning and effect of the divorce order made in that country. For example, the challenge in ground 5 (expressed, in any event, as a challenge as to weight) implicitly contends, as the submissions on behalf of the wife illustrate, that his Honour ought to have reached a conclusion about Lebanese law consistent with what the wife contended. The same is true of grounds 8, 11, 12 and 14, at least insofar as those grounds were argued before us.
The grounds as argued ignore two fundamental issues. First, his Honour’s ultimate decision with respect to forum was founded on a number of central findings that make up the “…general circumstances of the case…” and the “…full extent of the issues involved.” Secondly, his Honour’s decision was based on the evidence that each party chose to put before him. In particular, no expert evidence (properly so-called) was before his Honour; a situation to be contrasted with that which applied in the divorce proceedings which his Honour had earlier heard.
The full extent of the issues considered by his Honour included findings which authority dictates are directly relevant to the issue of forum:
·The wife’s prima facie right to adjudication in an Australian court (at [146]).
·The property at the heart of the wife’s claim, to the extent that it exists, is in Lebanon. The caveat exists because there are significant issues about whether such property exists or may have previously existed (at [147]).
·Conversely, the parties currently own no property of substance in Australia. In addition, his Honour found, and it is not challenged, that the parties have never owned real property in Australia and, for the whole of the time they lived here, lived in rental accommodation (at [149]).
·Both parties recognised that, despite a religious ceremony, legal recognition of their divorce was needed, and they chose Lebanon as the forum for same. In that respect, his Honour decided in the divorce proceedings, and it was upheld on appeal, that the wife was the applicant in those proceedings (at [147]).
·There are currently, on the wife’s own case, proceedings still on foot in Lebanon (at [147]).
·Importantly, those proceedings (an appeal) can be seen to be directly related to three earlier appeals filed and prosecuted in Lebanon by the wife. Those appeals are, as his Honour found at [148] “…in relation to the matrimonial property and whether the Jaafarite Court has the jurisdiction to make decisions on matrimonial property beyond the extent claimed by the wife.”
·The possible outcome of that appeal is a decision that “…the order made at the time the divorce was granted was not restricted as the wife contends…” and “…the parties would have to anticipate the wife would be estopped in Lebanon from further pursuing the husband for financial and property orders” (at [148]).
·The specific finding that the wife offered “no legal basis” for her contention that, should her application be permanently stayed as contended by the husband, “…it will be the end of the matter for her entirely” (at [150]) was not the subject of any challenge on this appeal.
·There is similar ability in each party to bring an application in Lebanon, considering their respective financial circumstances, including the fact that there “…have been a number of applications, hearings and appeals between these parties in two jurisdictions since they divorced in 1998” and that history “…is proof positive that each party has the ability to make and defend applications in each jurisdiction” (at [154]).
·The wife’s claim that any decision made by the Family Court “…in relation to the stay application will influence the Lebanese Courts in relation to whether they will hear any future application made by her there” was rejected by his Honour (at [155]).
·In respect of the last enumerated point, his Honour there made the point referred to earlier in these reasons that “[t]he decision in relation to inappropriate forum relates solely to the issue of inappropriate forum, it is not a de facto judgment on the merits of the wife’s case” (at [155]).
His Honour gave particular attention to the contentions of each of the parties with respect to the recognition and enforceability of any decision of any Australian court in the Lebanese court. His Honour referred to two Articles of Lebanese law which formed part of annexures to the wife’s affidavit material. While his Honour arrived at a conclusion at [162] that, by reference to Article 1016, the “…impression [was] that the Lebanese Court will decline to enforce an order of an Australian Court”, his Honour went on to give particular attention to the terms of the divorce order in Lebanon (at [163]) and thereafter included a quotation from the judgment of the appeal court in Lebanon which, as earlier referred to, was part of the wife’s own evidence albeit tendered by the husband in the proceedings before his Honour.
In particular, as has been seen, that judgment includes a statement that:
…it has been decided that the [type of divorce] as mentioned in the decree issued in the application for explanation and clarification, is inclusive of all monies payable to or will be payable to [the wife] as against the [husband] whether in her capacity as wife or divorcee is such that the divorcee husband is to be considered free of any financial obligations required due by reason of the marriage and divorce, regardless of the type of payment, location or courts involved.
(Italics in original).
Ground 5 refers specifically to his Honour failing to give “appropriate weight” to Annexure C to the wife’s affidavit sworn 16 May 2011. The ground asserts that the document is one “…in which the Appellant sought opinion to clarify the question of whether the Jaafarite Religious Court decision (decree) of 24/11/1998 also made order in relation to parties’ properties.” His Honour made a specific finding in that respect:
169.The wife sought to adduce evidence in relation to the power of the Lebanese courts to decide matters relating to matrimonial assets. These amounted to opinions by practitioners employed by her whose expertise was not established and who could not be cross-examined. This evidence is clearly insufficient to provide this Court with guidance to make a determination on this issue.
Importantly, his Honour went on to say that:
170.Even were this Court to make a finding on the ability of the Lebanese Courts to make such decisions relating to matrimonial assets, the likelihood of the Lebanese court accepting such a finding is questionable. Australia is not an appellate court for Lebanon, and that jurisdiction is not obligated to follow any decision of this Court. It would be open to the Lebanese Court to disagree with this Court’s finding as to jurisdiction and disregard any judgment based on such a finding.
(Emphasis added).
Again the point is made that the issue is not whether his Honour was correct in making those findings but rather, whether those findings were open on the evidence presented to him insofar as they were but a part of informing the decision as to forum. His Honour’s reasons read as a whole make it clear that these findings are but a part of the “full extent of the issues” in determining whether Australia is a clearly inappropriate forum. The matters earlier enumerated (above at [88]) are not the subject of challenge in this appeal save to the extent that, as asserted in ground 8, it is contended that undue weight was given to one of them.
The Remaining Grounds of Appeal
The matters just outlined have, obviously enough, a direct bearing on the challenges embraced by the remaining grounds of appeal.
Ground 4
With respect, none of the matters outlined in the subparagraphs of ground 4 speak of any appealable error.
Whatever might be the merits or otherwise of the matters there contended for, or whether in fact they are correct either by reference to Lebanese law or otherwise, the matters there outlined were not the subject of evidence informing any issues joined between the parties before his Honour.
To reiterate, his Honour was charged with deciding whether Australia was a clearly inappropriate forum, not the meaning or effect of Lebanese law.
There is no merit in this ground.
Ground 5
This ground has been dealt with earlier. The challenge, in terms, is a challenge to the weight which was accorded (or not accorded) to Annexure C to the wife’s affidavit sworn 16 May 2011. The obstacles confronting appellants in respect of challenges to weight are well traversed in the authorities and need not be repeated here.
On its face the relevant annexure is a letter from the wife’s Lebanese lawyer which annexes a handwritten statement. As earlier referred to, his Honour made a specific finding with respect to that document and we can see no error in the weight which his Honour attached to it.
There is no merit in this ground.
Ground 6
Ground 6 does not, in terms, particularise any appealable error.
The written submissions on behalf of the wife contend:
It is submitted that His Honour failed to understand, appreciate and give appropriate weight to the fact that under the Lebanese judicial system various religious sects make up the Lebanese population (formally 16) are constitutionally represented in parliament and are allowed unfettered religious freedom, including the question of matrimonial causes but all sects are united as one in relation of matters of national law and State interest. It is submitted that it would not be tenable under Lebanon Judicial System to equate on the same footing dowry and alimony in a marriage contract to fair division of property accumulated during the marriage. At the hearing of the appeal the appellant reserves the right to call or tender expert evidence to explain the appropriate procedural and legal issues under Lebanese Law and Judicature.
That submission contains, in its terms, the difficulty inherent in the challenge. Matters to which reference is made were not the subject of any evidence, let alone any expert evidence, before his Honour.
Moreover, the matters are, on their face, of the type that the wife, herself, appears to suggest had been the subject of proceedings, including appellate proceedings, in Lebanon.
There is no merit in this ground.
Grounds 8, 12 and 14
Grounds 8, 12 and 14 are dealt with together in the solicitor’s submissions made on behalf of the wife. They are similarly responded to in that fashion on behalf of the husband.
It is important to understand that each of the parties before his Honour referred the Court to Lebanese legislation entitled “Enforcement of Foreign Judgments and Bonds”. The consideration of the relevant Lebanese Articles, including, in particular, Article 1016, occurred in that context. The ultimate conclusion drawn by his Honour is that which derives from the translation of the judgment annexed to the wife’s affidavit. Nothing to which the wife has taken this Court suggests that the conclusion was not open to his Honour on the evidence available to him.
Ground 8 deals with the issue of enforceability of orders made in this country in the Lebanese courts. Again, that issue has been referred to earlier in these reasons. The wife’s submissions in support of this ground concede that “…the enforcement of Family Court of Australia orders or judgments in Lebanon was not an issue for determination before his Honour and was not an issue raised in the respondent summary dismissal application.” So much may be so, but it is an issue, as but one of a number of different issues, to be properly taken into account in deciding whether Australia is a clearly inappropriate forum.
In the submissions made by the wife’s solicitor on appeal, it is contended that “[e]ssentially the appellant’s contention is that the sole reason for His Honour raising enforceability of judgment in Lebanon is to give credibility to the conclusion He had already reached.” That assertion – which, again, goes to bias and prejudgment – is purportedly reinforced by a submission that “[t]he appellant submits that by any stretch of imagination there is no evidence before His Honour that would justify His Honour’s conclusion.” That assertion is incorrect.
The submission goes on that “[h]is Honour is on record of agreeing with the appellant’s legal representative that it is a very difficult area of the law and He was going to research it and expected each of the legal representatives of the parties to do likewise.” That is a reference to what occurred in the procedural hearing before his Honour on 14 June 2011. There were comments to that effect made by his Honour. However, the comments were made within the context earlier referred to and, in particular, a guarded suggestion to the then solicitor for the wife that he ought ensure that he was sufficiently experienced, and fully prepared, to argue the issues in the final hearing in respect of an area of the law that was not straightforward (transcript of proceedings, 14 June 2011, page 9, lines 36-46).
There is no merit in these grounds.
Ground 11
Neither the terms of ground 11 nor the submissions made in respect of it elucidate the appealable error said to found it.
The wife’s submissions contend “[t]he appellant repeats the submission made in support of the preceding Appeal point 10 above mutatis mutandis. The appellant also repeats the submission made in relation to Appeal point 4 and Appeal point 4(i)” (italics in original). The solicitor’s submissions contend:
1.His Honour was dealing with interlocutory matter not final hearing but being fully aware that orders that his Honour was intend making tantamount to final hearing.
2.If His Honour considered that He was required to take both the proceedings filed in Lebanon and Australia into consideration he would have insisted on being addressed by expert or having the benefit of expert report before Him.
3.In His Judgment His Honour did not make any finding or reference to the law in Lebanon and clearly fell into error especially so when what was before him was interlocutory matter.
With great respect to the solicitor, it is by no means clear what appealable error is asserted by reference to those arguments. Oral argument did not elucidate the matter.
To the extent that the appellant herself ties this ground to that which is alleged in ground 10, that ground will be dealt with below. Otherwise, the ground has no merit.
Ground 13
As framed, ground 13 contains an incorrect premise. The premise appears to be that the application filed in the Family Court of Australia by the wife on 26 May 2000 was somehow “equated” with the divorce application filed in the Lebanese court and the consequent order for divorce made by the Lebanese court on 24 November 1998.
His Honour used the same evidence to which reference has earlier been made, namely the wording of the divorce order and the passage of the judgment of the Lebanese Appeal Court earlier referred to, in determining whether a declaration by a Lebanese court pertaining to property (as his Honour found it to be) was capable of being recognised in Australia. His Honour concluded that it could not be (at [202], and the paragraphs preceding it).
His Honour quoted at some length from the decision of this Court in Caddy and Miller (1986) FLC 91-720. Two bases are given by his Honour for its applicability. First, although the declaration made by the Lebanese court at the time of the divorce order is contended by the wife to not relate to property or maintenance matters, “[t]hat position appears to have been rejected by the Lebanese Court” (at [208]). In seeking to argue against the proposition, the wife sought to agitate issues (some of which are evident in the grounds of appeal) to the effect that the order made by the Lebanese court does not bear the meaning that his Honour gave it. That contention is answered by his Honour by reference to terms of the divorce order itself and the subsequent extract from the judgment of the Lebanese appeal court earlier referred to.
No error is demonstrated in his Honour placing reliance on that evidence.
Thereafter, his Honour specifically referred to the elements relevant to the application of the doctrine (at [235]) and proceeded to make findings with respect to each of them.
It is not suggested in this appeal that any of those findings was erroneous save in respect of the wife’s contention just referred to. His Honour specifically referred (at [242]) to the fact that the wife contended that he:
…should rely on the untested evidence of her legal representatives in Lebanon in relation to enforcement of overseas judgments. The advice is annexed to her affidavits relied upon in this hearing. I have not sufficient evidence before me to be able to take into account any legal advice given to the wife. There are no affidavits by recognised experts on the matter, nor have any experts been appointed by the court to provide evidence on the point.
His Honour also referred (at [243]) to the fact that:
[t]he wife also submits that I should also disregard portions of the judgments handed down in Lebanon (the appeals) as being “not a proper representation of Lebanese law”. This is essentially a request that the Family Court of Australia become an Appellate Court in this matter, judging, by the standards and practices of this Court, the judgment of a foreign court. I decline to take on such a role, and, as I have said earlier in this judgment, any judgment by me on the jurisdiction of a foreign court’s jurisdiction would in all likelihood be rejected by said Court.
Again, nothing referred to by the wife on this appeal suggests error in those two central findings made by his Honour.
The wife’s written submissions contend that:
…if the Court is seized of an application under section 79 it has jurisdiction and must decide the application according to law. That being the case the appellant having filed application under sections 78 and 79 of the Family Law Act on 26 May 2000, the said application constituted matrimonial cause that would invoke the jurisdiction of the Court. In such a situation the Court must hear the appellant’s application on the merits.
That submission ignores what both his Honour said and what this Court attempted to make clear in Caddy and Miller namely that (at 75,233):
…estoppel by res judicata is a rule of evidence and in no way impinges on the jurisdiction of a court. If this Court be seized of an application under sec. 79 it has jurisdiction to and must decide it according to law. However that law includes the rule that a party is precluded from adducing evidence in a case the object or effect of which is to dispute against another party the correctness or merits of an earlier decision in proceedings between the same parties disposing of the same cause…
Again, it appears that the true complaint is one of prejudgment. The wife submits “…the injustice is further compounded by His Honour’s suggestions as to amendments to be made the respondent’s summary dismissal application. Amendments that amounted to spoon feeding and without which amendments the respondent’s application would have been dismissed.”
The solicitor’s submissions contend that Caddy and Miller “…does not apply to the factual situation before His Honour.” The submission goes on:
2. Likewise in further extrapolation or submission on the preceding point the appellant submits that the Case of Henry v Henry falls into the same category as Miller and Caddy in that the issues that were before His Honour were uniquely distinguishable not only on the facts but also on the religious and cultural issues involved.
To the extent that any real meaning can be given to these submissions, they appear to merely underline submissions made by the wife to the effect that the decision in Lebanon could not found res judicata. For the reasons given by his Honour we consider that there is no merit in that suggestion.
Conclusion as to grounds 4, 5, 6, 8, 11-14
There is no merit in grounds 4, 5, 6, 8, 11-14.
Ground 10 and Leave Pursuant to s 44(3)
The terms of ground 10 do not reveal any appealable error.
The submissions by the wife do not appear to bear any direct relationship to the terms of the ground. The wife contends in those submissions (errors in original):
At the hearing of the summary dismissal application on 26 July 2011 His Honour commented to the appellant’s legal representative (Barber) did not address the question of leave under section 44(3) of the Family Law Act…
It is submitted that these comments by His Honour’s were more of a cursory nature than being substantive or determinative as otherwise it would have been incumbent upon His Honour to afford the appellant’s legal representative the opportunity to provide either written submissions or adjourn the proceedings to hear oral submissions. This is clearly so when one considers the fact that several months after the hearing His Honour provided the parties the opportunity to make submissions on the doctrine of res judicata. It is further submitted that there was documentary and sworn evidence before his Honour that the appellant was facing financial hardship and was in receipt of income tested pension.
The written submissions of the wife then go on to refer to, and apparently seek to re-agitate, an issue determined by his Honour in the divorce proceedings and upheld on appeal; namely, that the wife was the applicant in the divorce proceedings in Lebanon (that is an issue relevant, in those proceedings, to the application of s 104).
The wife’s solicitor submitted in respect of ground 10 that (errors in original):
1.In his application of sections 44(3), 44(4), and 104 of the Family Law Act His Honour did so as if He were hearing the application of the appellant for property settlement in contested setting where the parties have give oral evidence and cross examined and either parties have relied on expert evidence on the question.
2.The appellant further submits that seen in global context and on the fact that what was in front of his Honour was interlocutory application not substantial hearing strict reliance on the wordings in sections 44(3), 44(4) and 104 of the Family Law Act does constitute appellable error. A point seems to have been ignored or missed by the respondent’s counsel.
(Italics in original).
Contrary to what appears to be there asserted, submissions in respect of s 44(3) and (4) of the Act were sought from the wife’s solicitor and were in fact made (see, transcript of proceedings, 27 July 2011, pp 27-29).
Nothing contained in the written or oral submissions on behalf of the appellant points to any error made by the trial judge.
Was Leave Pursuant to s 44(3) Required?
His Honour’s findings with respect to s 44(3) are premised on leave pursuant to that section being required where parties are divorced by the law of a country other than Australia (at [185]-[193]). No ground of appeal challenges, in terms, that premise, nor do any submissions made by the wife or on her behalf.
His Honour’s premise was based on one view – possibly the then predominant view – of then existing authority. Subsequently, this Court has decided in Anderson & McIntosh (2013) FLC 93-568, after considering existing authority and careful arguments in respect of the provisions of the Act and their meaning, that leave pursuant to s 44(3) is not required in respect of a divorce obtained overseas.
On an appeal by way of rehearing, this Court is bound to apply the law as at the date of the hearing of the appeal (see, Coulton v Holcombe (1986) 162 CLR 1 at 7). This appeal was heard on 2 December 2013 and the decision in Anderson was handed down on 13 December 2013. However, the effect of the decision in that case is to determine the meaning of the terms of the Act applicable on, relevantly, 2 December 2013 (when the appeal was heard), and on 27 July 2011 when his Honour heard the proceedings; 13 March 2012 when his Honour delivered judgment; and, indeed, on 26 May 2000 when the wife filed her application for settlement of property in the Family Court.
As a result, his Honour was in error in determining that the wife required leave pursuant to s 44(3) of the Act to institute her proceedings for settlement of property.
Although no ground of appeal asserts, in terms, an error of law in this respect and although no submissions were made to that effect, “if the judges of an appellate court hold the decision of the trial judge to be wrong, they should correct it” (Warren v Coombes (1979) 142 CLR 531 at 553, per Gibbs ACJ, Jacob and Murphy JJ).
As a result, the appeal, insofar as it challenges the alternative order made by his Honour in respect of leave pursuant to s 44(3), must succeed.
The Result of the Appeal
For the reasons just identified, the appeal must be allowed in part so as to set aside the second, alternative, order made by his Honour on 13 March 2012.
Otherwise, there is no merit in the challenge to his Honour’s order as to permanent stay.
Events subsequent to the Hearing of the Appeal
On 23 December 2013, after the judgment in this appeal had been reserved, the wife filed an Application in an Appeal. By that application she seeks orders that the:
1. Hearing on 2 December 2013 be declared null and void.
2.Appeal remitted to registry of Court of Appeal for allocation of new date.
3.Such further or other orders as in the circumstances may be deemed appropriate.
The application was dealt with procedurally as follows.
On 11 April 2014, the husband’s legal representatives having previously indicated the husband’s consent to the application being heard “on the papers”, the Appeals Registrar, Eastern Region, wrote to the wife and legal representatives of the husband, outlining directions for the wife’s application to be dealt with. In particular, a direction was made that:
…
Each party is directed to file and serve written submissions within 21 days, not greater than 8 pages in length, in support of, or opposition to, the application including any submissions as to costs.
…
At the same time as advising the Appeals Registrar that the husband consented to the wife’s application being heard and determined “on the papers”, the solicitor for the husband advised that the husband opposed the orders sought by the wife.
Written submissions were filed by each party on 2 May 2014.
In the case of the wife, her affidavit filed contemporaneously with her application sets out the basis upon which the application is made. It is a short document and it is appropriate to quote it in full (errors as per original):
1. I am the named appellant in appeal number EA 46/2012.
2.Appeal number EA 46/2012 was heard on 2 December 2013. In substance both parties to the appeal relied on their written submissions.
3.On or about 9 December whilst going through documents I realised that two of the Justices (May and Murphy) who sat on the appeal were also Justices that sat on my appeal in relation to divorce.
4.Attached herewith and marked with the letter “A” is a copy of letter I emailed to the Appeal registry of the Family Court on 16 December 2013.
5.Attached herewith and marked with the letter “B” is a copy of the Full Court judgment dated 13 September 2010.
6.Given the intricate and inseparable relationship between the issues raised in argument in the two appeals and grounds of appeal I do have my reservation as to whether their Honours can be totally impartial to previous mindset that led to judgment in appeal number EA 21/2009.
7.In the event that the Honourable Court wishes to be addressed in relation to the issues that link between the appeal number EA 21/2009 and the grounds of appeal heard on 2 December 2013, the appellant request to be given the opportunity either to address the court or make written submission.
The written submissions filed on behalf of the wife, whilst in large part repeating the submissions made by both herself and her lawyer in the instant appeal, also contend that the “inseparable connection” between the appeal the subject of these reasons and the September 2010 appeal arises because, had the Full Court not dismissed the latter appeal, the husband would not have filed an application for summary dismissal (which, inferentially, would not have led to her application being permanently stayed) (wife’s written submissions filed 2 May 2014 at [8]). The argument proceeds that:
…given the fact that the grounds of appeal that were before Justices Coleman, May, and Murphy on 13 September 2010 were inseparable the apprehended bias that the High Court warned about in Johnston arguably becomes actual bias which squarely raises the issue of non compliance with Judicial Oath.
(Underlined emphasis in original).
It can be seen, then, that the gravamen of the submissions made as to why “the appeal hearing on 2 December 2013 be declared null and void” is what might be reframed as a reasonable apprehension that May and Murphy JJ could not or would not bring an impartial mind to the determination of the instant appeal. The sole basis for that assertion (or, more accurately, the wife’s “reservation”) is an alleged “…intricate and inseparable relationship between the issues raised in argument in the two appeals and grounds for appeal…”
As will be clear from what we have already said in relation to the allegations of bias and prejudgment attending the substantive appeal, that is insufficient. Again, we can, with respect, do no better than reiterate in this context the words of Mason J in Re JRL (at 352) earlier quoted in these reasons and relied upon by the husband to oppose the wife’s application.
In circumstances where neither the September 2010 appeal nor the instant appeal depends upon this Court’s findings as to credibility and where, despite the wife’s contentions, the two appeals are not “inseparable”, the wife has by no means “firmly established” prejudgment.
The application in an appeal should be dismissed and we will order accordingly.
Costs
As is customary, at the conclusion of the hearing of the appeals, we sought submissions from each party regarding the costs of the appeal.
In the event the appeal was unsuccessful, the husband indicated that he would not be seeking an order for costs, given the wife’s financial position.
In the event of success, both parties a certificate pursuant to the Federal Proceedings (Costs) Act 1981 (Cth) (“Costs Act”).
Somewhat unusually, if unsuccessful, the wife sought an order that the husband pay her costs of the appeal.
The wife has been partially successful in her appeal. That success, however, was based on a point not raised by either party on appeal and, importantly, not the subject of any written or oral submissions. Further, despite that success, the trial judge’s primary order, namely the permanent stay of the wife’s application, remains in force.
In the circumstances, particularly given each party’s financial circumstances, we are not satisfied that there are circumstances justifying a departure from s 117(1) of the Act.
We are similarly not satisfied that the circumstances, in particular the context surrounding the partial success of the wife’s appeal, are such to warrant the granting by this Court of certificates under the Costs Act.
I certify that the preceding one hundred and sixty-three (162) paragraphs are a true copy of the reasons for judgment of the Honourable Full Court (May, Murphy and Benjamin JJ) delivered on 23 June 2014.
Associate:
Date: 23 June 2014
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