Bhalla v Minister for Immigration and Border Protection
[2016] FCA 395
•22 April 2016
FEDERAL COURT OF AUSTRALIA
Bhalla v Minister for Immigration and Border Protection [2016] FCA 395
Appeal from: Bhalla v Minister for Immigration & Anor [2015] FCCA 2381 File number(s): NSD 1128 of 2015 Judge(s): GILMOUR J Date of judgment: 22 April 2016 Catchwords: MIGRATION – whether the AAT has the power to obtain an independent expert’s report as to whether the applicant was a victim of family violence – whether the AAT is bound to accept the opinion of independent expert as correct – whether a person may be a perpetrator of family violence by passivity in the face of violence against the victim by another person Legislation: Family Law Act 1975 s 114
Migration Act 1958 ss 65, 349, 498
Migration Regulations 1994 (Cth) Sch 2 cl 100.221, Regs 1.21, 1.23, 1.24, 1.25, 1.26
Cases cited: Bull v Attorney General for NSW (1913) 17 CLR 370
Davison v Queensland (2006) 226 CLR 234
Devenish v Jewel Food Stores (1991) 172 CLR 32
Minister for Immigration and Citizenship v Maman (2012) 200 FCR 30
Sie Sok v Minister for Immigration and Border Protection (2000) 238 CLR 251
Date of hearing: 10 February 2016 Registry: New South Wales Division: General Division National Practice Area: Administrative and Constitutional Law and Human Rights Category: Catchwords Number of paragraphs: 56 Counsel for the Appellant: Mr LJ Karp Solicitor for the Appellant Parish Patience Immigration Lawyers Counsel for the Respondent: Mr MJ Smith Solicitor for the Respondent Sparke Helmore Lawyers ORDERS
NSD 1128 of 2015 BETWEEN: UPASANA BHALLA
Appellant
AND: MINISTER FOR IMMIGRATION AND BORDER PROTECTION
Respondent
JUDGE:
GILMOUR J
DATE OF ORDER:
22 APRIL 2016
THE COURT ORDERS THAT:
1.The appeal is dismissed.
2.The appellant pay the first respondent costs of the appeal.
Note: Entry of orders is dealt with in Rule 39.32 of the Federal Court Rules 2011.
REASONS FOR JUDGMENT
GILMOUR J:
This appeal is from orders of the Federal Circuit Court made on 1 September 2015: Bhalla v Minister for Immigration & Anor [2015] FCCA 2381. Judge Street dismissed the appellant’s claim for relief in relation to the decision of the second respondent (the Tribunal) not to grant the appellant a Partner (Migration) (Class BC) visa.
Background
The following background, drawn from the appellant’s written submissions and in part the Minister’s submissions, is not controversial.
The appellant, Ms Bhalla, married "Rocky" Bhalla in Jalandhar, India according to Hindu ritual on 23 November 2009. This was an arranged marriage agreed to by their families. It was Ms Bhalla's second marriage. It is unclear as to whether "Rocky" had been married before.
At all relevant times "Rocky" was an Australian citizen. At the end of December 2009 he sponsored Ms Bhalla to migrate to Australia as his partner. He was the sponsoring spouse or partner. On 28 April 2010 Ms Bhalla was granted a Partner (Provisional) (Class UF) subclass 309 visa. The Provisional visa was to be in effect until the associated application for a Partner (Migrant) Class BC visa (made on the same form at the same time as the application for a Partner (Migrant) visa) was decided or withdrawn.
Ms Bhalla entered Australia in July 2010. The time between the marriage and her arrival in Australia was, on her account, not a happy one. She claims to have been kept in virtual servitude in her in-laws' home, mistreated, made to cook and clean and was not permitted to see her parents unaccompanied. When she arrived in Australia she found that she and her husband were living with his brother who controlled their lives, was physically abusive, took inappropriate videos of her and "Rocky" in their bedroom, sexually harassed her and intimated that he could have sex with her.
After one incident on 16 December 2011 the police were called, Ms Bhalla was charged with assault and served with a Provisional Apprehended Domestic Violence Order (ADVO). The matter was heard at the Sutherland Local Court on 26 March 2012. The charges were dismissed and the Interim ADVO revoked.
In the meantime, on 29 December 2011, "Rocky" wrote to the Minister's Department and withdrew his sponsorship, citing domestic violence committed by Ms Bhalla. On 6 January 2012 the Minister then wrote to Ms Bhalla inviting a response to this information. On 19 January 2012 Ms Bhalla's migration agents wrote to the Minister stating that she had been the victim of family violence and that she sought to have her application for a permanent visa assessed under the family violence provisions of the Migration Regulations 1994 (Cth) (“Regulations”).
In order to be granted the Partner (Migration) (Class BC) visa that was sought, it was necessary for the appellant to meet the requirements of cl 100.221(1) of Schedule 2 to the Regulations, which provided that the visa-applicant must meet, at the time of the decision, one of the alternate requirements of either sub-cl (2), (2A), (3), (4) or (4A) of cl 100.221.
It is not disputed that at the time of the Tribunal's decision, the appellant's relationship with the sponsoring spouse had ceased. Nevertheless, the appellant may still have been able to satisfy a criterion for the grant of the visa if, after arriving in Australia, she had suffered "family violence" committed by the sponsoring spouse: cl 100.221(4)(b) and (c) of Schedule 2 to the Regulations.
"Relevant family violence" is defined in Reg 1.21 as being conduct, whether actual or threatened, towards the alleged victim that causes the alleged victim to reasonably fear for or to be reasonably apprehensive about his or her own wellbeing or safety. Circumstances where family violence is taken to have occurred are set out in Reg 1.23. These include a final court order, protecting the victim from the alleged perpetrator (Reg 1.23(4), or a conviction of the alleged perpetrator, of an offence of violence against the alleged victim (Reg 1.21(6)). As there was no such order protecting Ms Bhalla nor any relevant conviction she had to rely on "non-judicially determined family violence" pursuant to Regs 1.23(8)-(13), read with Regs 1.24, 1.25 and 1.26. Regulation 1.23(9) provides for such a circumstance of family violence, where, as here, a visa-applicant seeks to satisfy a prescribed criterion for the visa that is sought on the basis that the visa-applicant has suffered family violence at the hands of his or her spouse.
Regulation 1.23(10) provides that where an application for a visa includes a non-judicially determined claim of family violence the Minister must consider whether the alleged victim has suffered relevant family violence; and if the Minister is satisfied that the alleged victim has suffered the relevant family violence, the Minister must consider the application on that basis. If the Minister is not satisfied that the alleged victim has suffered the relevant family violence the Minister must seek the opinion of an independent expert about whether the alleged victim has suffered the relevant family violence. The Minister must take an independent expert's opinion on the matter to be correct for the purposes of deciding whether the alleged victim satisfies a prescribed criterion for a visa that requires the appellant for the visa, or another person mentioned in the criterion, to have suffered family violence.
Ms Bhalla proffered evidence in her statutory declaration as the alleged victim required by Reg 1.25. The "competent persons", defined in Reg 1.23 and required by Reg 1.24(1)(b) read with Reg 1.26, were Dr Verma, a medical practitioner; and Dr Dover, a psychologist. The delegate was not persuaded that Ms Bhalla had suffered family violence and therefore sought the opinion of an "independent expert", pursuant to Reg. 1.23(10). The expert, Dr Emma Collins, a clinical psychologist, reported that:
"… it is likely that Ms. Bhalla did experience incidents of family violence within the context of [her] discordant union, but I do not believe that she experienced persistent fear or any alleged violence significantly affected her wellbeing." (AB 218)
The delegate was obliged to accept the opinion of the independent expert as correct: Reg 1.23(10)(c)(ii). Accordingly, on 6 August 2013 she rejected Ms Bhalla's visa application. An application for review was lodged on 23 August 2013.
Proceedings before the Tribunal
The Tribunal conducted two hearings. It recorded that during the first of those hearings it was agreed that certain documents would be provided to another independent expert should the Tribunal be of the view that Ms Bhalla had not suffered relevant family violence. The Tribunal subsequently referred the question of whether the appellant had suffered relevant family violence to LSC Psychology.
On 3 February 2015 Dr C.J. Lennings, a clinical psychologist, gave his opinion that relevant family violence had not occurred.
The Tribunal held another hearing on 24 April 2015.
The Tribunal Decision
After a fulsome description of the evidence and hearings the Tribunal found that Ms Bhalla and "Rocky" were in a spousal relation and that that relationship had ceased. It characterised the issue as whether Ms Bhalla had suffered family violence committed by Rocky as the sponsoring partner within the meaning of the regulations referring to cl 100.221(4)(c)(i). It concluded that the necessary evidence pursuant to Regs 1.23, 1.24(1)(b), 1.25(2) and 1.26 had been provided. It then moved on to ask itself whether Ms Bhalla had suffered relevant family violence.
The Tribunal at [39] was not satisfied that Ms Bhalla had suffered relevant family violence. It then sought the opinion of another "independent expert", Dr Lennings. The Tribunal considered that it was required to take the expert's evidence to be correct. Accordingly the Tribunal concluded she had not suffered relevant family violence, stating that:
"… the opinion of the independent expert is authorised by the Regulations, in that it is provided by an independent expert who is a person suitably qualified to make the assessment, is an employee of an organisation specified for that purpose and was properly made. Under r. 1.23 the tribunal is required to take as correct an independent' expert's opinion, properly made. Accordingly, the tribunal finds that the applicant is not taken to have suffered family violence committed by the sponsor."
Federal Circuit Court
Before the primary judge, the appellant contended that the Tribunal had fallen into jurisdictional error in four ways.
First, it was alleged that the Tribunal fell into jurisdictional error in concluding that it was "bound" to accept as correct the opinion of the independent expert obtained by the Tribunal that the appellant had not suffered from relevant family violence. The appellant, however, conceded before the primary judge that by reason of certain comments of Katzmann J in Minister for Immigration and Citizenship v Maman (2012) 200 FCR 30 at [87] she could not succeed on this point.
Second, the appellant contended that she was denied procedural fairness because she was not permitted to have in attendance a lawyer at the interview conducted by the independent expert. The primary judge disagreed and the appellant does not challenge the primary judge's finding in this regard.
Third, the appellant alleged that the independent expert's opinion could not have been relied upon by the Tribunal as it was based entirely on his assessment of factual claims made by the appellant and others. At no time, it is alleged, did the independent expert attempt to make a professional clinical assessment of the appellant's psychological state to determine whether she had the clinical profile of a person who had been the victim of family violence. The primary judge rejected this ground of review and the relevant finding is not challenged on appeal.
Finally, the appellant contended before the primary judge that the independent expert had misunderstood the legal definition of relevant family violence, in that he failed to consider that the passivity of the appellant's husband in the face of abuse by the appellant's brother‑in‑law could constitute complicity in the abusive behaviour and therefore amount to relevant family violence. The primary judge rejected this ground of review.
As to this last Ground His Honour found at [22] that:
"It is clear under reg.1.23 that the expert is required to express an opinion as to whether the alleged victim has suffered the relevant family violence by the alleged perpetrator. Regulation 1.23(10) includes the issue of "by the alleged perpetrator" as is made clear on a reading of the regulation as a whole, and in particular the meaning of "the victim" as well as the work done by reg.1.23(13). It is clear that the independent expert did take into account the conduct of the applicant's husband and did evaluate that passivity in relation to determining whether there was the relevant family violence."
Amended Notice of Appeal
Ground 2 was abandoned. The amended Grounds 1 and 3 are as follows:
(1)Whether the Tribunal has the power to obtain an "independent expert's" report as to whether the applicant before it has been the victim of "family violence" and if so whether the primary judge erred in finding that the Tribunal must accept the opinion of the reporter on that issue.
(3) Whether the "independent expert" appointed by the Tribunal had misconstrued the term "family violence" as excluding the situation of a person's passivity in the face of violence indicating acquiescence to such violence, and if so whether the Court below erred in failing to so find.
Ground 1- Whether the Tribunal has the power to obtain an “independent expert’s” report as to whether the applicant before it has been the victim of “family violence”
The appellant referred the Court to the decision of the Full Federal Court in Maman where Flick and Foster JJ observed at [16] that, "The role played by an independent expert's opinion obtained by a delegate in any review process subsequently undertaken by the Tribunal is regrettably unclear."
In Maman, the Tribunal had obtained an opinion from an expert directed to whether the visa-claimant had suffered "family violence".
Their Honours, in obiter, were of the opinion that the general powers given to the Tribunal by s 349 and 359(1) of the Migration Act 1958 (Cth) gave scant support to the submission made by the Minister in that case that the Tribunal had power itself to obtain an independent expert's opinion and was bound to do so (at [18]). Indeed their Honours at [19]–[22] doubted that proposition. Their Honours concluded this aspect of their judgment by noting that the power of the Tribunal to itself obtain a further report was not fully argued. Both parties in Maman proceeded upon the basis that no error was exposed by the Tribunal obtaining for itself a further independent expert's opinion.
While Katzmann J generally agreed with the doubts expressed by Flick and Foster JJ, her Honour added one caveat. Her honour was of the view that where the independent expert opinion that is provided to the delegate is reached in denial of procedural fairness, or for some other reason does not meet the statutory description, then the Tribunal, standing in the shoes of the Minister, would be bound by the direction in reg 1.23(1B)(b) to seek the opinion of another independent expert: Maman at 56 [98].
The Minister initially submitted that the comments of Foster and Flick JJ, and of Katzmann J, provide strong support for the submission that the Tribunal was under no obligation to obtain a further independent expert report nor indeed had the power to do so. Nonetheless the Minister submits that it is unnecessary for the Court to determine the issue.
The appellant also submits that the observations of the plurality in Maman that the utility of seeking a review in circumstances where the Tribunal is bound by a previous opinion of an independent expert, is limited, indeed would be futile, counts against the Tribunal being bound by an opinion of an independent expert obtained by the delegate. She submits that, in these circumstances, the review, and the right to review, would be rendered nugatory.
Even so she submits that the Tribunal has power under s 359(1) to obtain another independent expert's report being information the Tribunal considers relevant and would have a duty to consider such a report (s 359(2)). However, the appellant submits that the duty to take such a report as correct is confined to the delegate, and that, accordingly, the Tribunal's statement, to the effect that it was required to take the independent expert's opinion as correct was in error. Thus the appellant submits the Tribunal would have misconstrued the limits of its jurisdiction, and committed jurisdictional error.
Put shortly the appellant’s submission is that although the Tribunal was empowered by virtue of s 359(1) to obtain for itself a further expert report, it was, unlike the delegate, not required to accept the correctness of it and was free to disregard it.
The questions, the subject of the first ground of appeal, have already been resolved by the High Court.
Indeed, it was the decision of the High Court in Sie Sok v Minister for Immigration and Border Protection (2000) 238 CLR 251 which was considered by the plurality in Maman at [18] and in particular as it concerned the “powers and discretions” of the Tribunal when considering the criteria under Reg 1.23. As may be seen from [19] of their honours’ reasons to which I have referred, it was their view that the direction under then Reg 1.23 (1B)(b) that the Minister must “seek the opinion of an independent expert” cannot easily be characterised as a “power” and even less clearly as a “discretion”.
Their Honours remarks were obiter and do not appear to have arisen from any issue in that appeal.
Sie Sok at [25] noted that by virtue of s 349(1) of the Migration Act 1958 (Cth) the Tribunal is empowered to “exercise all the powers and discretions that are conferred by this Act on the person who made the decision”, in this case being the Minister by his delegate.
That this extended to a consideration by the Tribunal of the criteria prescribed under Reg 1.23 cannot be doubted. The Court held relevantly:
[27] In deciding how the Tribunal is to set about determining whether the visa applicant has suffered domestic violence committed by the sponsor it is necessary to notice two points. First, as noted earlier, reg 1.22 provides that the reference in cl 100.221(4)(c)(i)(A) to the applicant having suffered domestic violence “is a reference to a person being taken, under regulation 1.23, to have suffered domestic violence”. Secondly, when, as here, a visa application is refused, the applicant seeks review by the Tribunal, and a criterion for granting the relevant visa, which the applicant claims to meet, is that he has suffered domestic violence, the question – whether a person is taken under reg 1.23 to have suffered domestic violence – is committed to the Tribunal.
[28] Rather, in reviewing the refusal to grant the permanent visa, the Tribunal is to determine whether the criterion for the grant of that visa (that the appellant “has suffered domestic violence committed by the sponsoring spouse”) is met. And that criterion is met only if the appellant is to be taken, under reg 1.23, to have suffered domestic violence. In deciding that question, the Tribunal may exercise all of the powers and discretions conferred by that Division of the Regulations on the Minister.
[30] Regulation 1.23(1B) provides that, where there is a non-judically determined claim of domestic violence, the Minister must consider whether the alleged victim “has suffered relevant domestic violence” and then, if not satisfied that the alleged victim has suffered relevant domestic violence, seek the opinion of an independent expert. The Minister must (reg 1.l23(1C) take the opinion of the independent expert to be correct.
[31] When the Tribunal comes to exercise the powers and discretions given to the Minister under reg 1.23, and in particular when the Tribunal is considering an application for a visa that includes a non-judicially determined claim of domestic violence, the consideration which the Tribunal must give to the claim is regulated by those provisions of the Act which prescribe the Tribunal’s procedures.
[40] It is necessary to bear steadily in mind that obtaining the opinion of an independent expert will determine any issue about whether there had been relevant domestic violence. That is to say, the obtaining of an opinion that satisfies the description in reg 1.23(1B)(b) – “the opinion of an independent expert: - is dispositive of an issue arising in relation to the decision under review by the Tribunal.
Sie Sok differs on the facts in that there the claim by the applicant to have suffered domestic violence was made for the first time before the Tribunal, it not having been raised before the Minister. I do not regard this as altering the conclusion that the “powers and discretions” under Reg 1.23 were exercisable in this case by the Tribunal including the obtaining of an independent expert report which the Tribunal was required to accept as correct.
When Sie Sok was brought to the attention of counsel for the parties by the Court it was adopted in argument on behalf of the Minister. Counsel for the appellant acknowledged the difficulties now confronting his first ground of appeal but, as a matter of caution, contended that Sie Sok was wrongly decided and maintained his submissions. I reject those submissions.
I am, of course, bound by Sie Sok. I do not doubt, for my part, its correctness. A decision to grant or not to grant the visa is pursuant to power conferred upon the Minister under s 65 of the Migration Act. This power in turn, for the purposes of a review of the Minister’s decision, is also conferred upon the Tribunal by s 349.
The Regulations promulgated under the Migration Act include the prescribed criteria for the grant of visas in various subclauses. The regulation prescribes the manner of the exercise of the s 65 power. Reg 1.23(10)(c)(i) prescribes that, in the circumstances of this case, where the Minister was not satisfied that Ms Bhalla had suffered relevant family violence, the Minister must seek the opinion of an independent expert.
The observation in Maman that Reg 1.23(1B)(b), the predecessor to Reg 1.23(10)(c)(i), is a “direction” which cannot be easily characterised as a “power” or “discretion” for the purposes of s 349 is to mischaracterise the effect of Sie Sok. It is neither a power nor a discretion. Sie Sok does not suggest otherwise. It is but a subordinate legislative prescription to the exercise of the power and discretions conferred by s 65(1) of the Migration Act. As is provided by s 498 of the Migration Act the powers conferred under the Act are to be exercised in accordance with any applicable regulations under the Act.
The conclusion of the primary Judge, albeit for different reasons, was not in error. Accordingly Ground 1 fails.
Ground 3 - Whether the second "independent expert" misconstrued the legal definition of "relevant family violence"
The appellant’s submission is that, on the true construction of the following provisions, the conduct constituting family violence may have been that of Ms Bhalla's husband:
Sch. 2 cl. 100.221(4)(c)(i) to the effect that the applicant has suffered family violence committed by the sponsoring partner.
Reg. 1.23(2) and (3) to the effect that the violence, or part of the violence that led to the granting of an injunction under s. 114 of the Family Law Act, 1975 must have occurred whilst the marriage relationship between the visa applicant and the alleged perpetrator existed.
For non-judicially determined family violence, Reg 1.23(9)(b), that the alleged victim is the spouse or de factor partner of the alleged perpetrator.
The appellant submits that the words in the above provisions which suggest that the sponsoring partner must have committed the violence, or must have been the perpetrator, need to be understood as encompassing the passivity of a person who acquiesces or may be perceived as acquiescing to the violence. She submits that this is so for the following reasons:
(1)First, the legislative intention behind the provision in Part 100 of Schedule 2 is to permit a person who has been the victim of family violence while the relationship existed, and whose relationship with the sponsoring partner has ceased, to obtain a partner visa. That is plain from the existence of the relevant provision. That intention is not carried into operation if the offending conduct is limited to that of the spouse or de facto partner. To carry out the intention of the legislation the words, "committed by the sponsoring partner" need to be understood as encompassing violence committed by another person with the acquiescence or implied consent of the sponsoring partner. Similarly in Reg 1.23(3) the words, "the alleged perpetrator and the spouse of the alleged perpetrator" need to be understood as encompassing violence perpetrated by another person with the acquiescence or implied consent of the victim's spouse. Also, in Reg 1.23(9)(b)(i), the alleged victim should be understood as being the spouse or de facto spouse of either the person who was the perpetrator of the violence, or the spouse of a person who acquiesced in the violence.
(2)Second, this construction is supported by the fact that the family violence exception to the ordinary requirement that a permanent partner visa is available to a person who is the spouse or de facto spouse of the sponsor (cl 100.221(2) and cl 100.221(2A) and cl 100.221(4A) of Sch. 2) are remedial provisions, in that they are intended to reduce the harshness of an arbitrary application of the general requirement. In accordance with established principles of statutory construction the family violence provisions should be construed beneficially (e.g. Bull v Attorney General for NSW (1913) 17 CLR 370, 384; Devenish v Jewel Food Stores (1991) 172 CLR 32, 44; Davison v Queensland (2006) 226 CLR 234 at [41] (per Kirby J agreeing with the plurality).
I reject the submission that mere passivity on the part of the sponsoring partner, without more, in the presence of a third party who commits violence against the alleged victim is capable of supporting a finding that, in those circumstances, the sponsoring partner, also, thereby, perpetrated the violence.
The factual question of whether there was more than mere passivity, namely that Rocky encouraged his brother to be violent towards the appellant was considered by Dr Lenning.
Dr Lennings’ reasoning, as relevant, may be summarised as follows:
(a)It is likely that the relationship between the brother in law and Ms Bhalla was at times abusive, although whether that occurred at "Rocky's" behest or with him as a passive onlooker is a matter of debate. The incident on 16 December 2011 indicates an altercation between he and Ms Bhalla.
(b)Ms Bhalla appears to have been quite prepared to respond physically to what she saw as attacks on herself. Mutual conflict does not in itself defray the psychological burden of being the victim of abuse. It is quite possible for a person to respond to aggression in self-defence and at the same time experience fear and apprehension about their wellbeing.
Dr Lennings concluded:
"It seems more likely that the relationship was a fractious one from the beginning, perhaps because of the brother in law's intervention and Mr Bhalla's alleged passivity about responding to such behaviour. However, it seems to have been one characterised by mutual conflict and a discrepancy in the expectations of husband and wife. Over time, Ms Bhalla has attributed aspects of the abuse to the husband she experienced from the brother in law. Her accounts of what has happened have changed over time, representing a pattern of escalation of claim. Mr Bhalla's probable passivity in the face of his brother's alleged improper and abusive behaviour is unfortunate, but there is no sense that the failure to act protectively is the same as encouraging the brother to abuse his wife, or enlisting the brother to do so. It is likely that Mrs Bhalla was exasperated by her brother in law. It cannot be concluded in the current assessment that Ms Bhalla held a reasonable apprehension as to her safety or wellbeing from the behaviour of her husband." (emphasis added)
These passages disclose that Dr Lennings was conscious of the fact that one cause of the appellant's marriage difficulties arose as a result of the conduct of her brother-in-law. Dr Lennings was also aware of the appellant's husband's "passivity in the face of his brother's alleged improper and abusive behaviour", characterising such passivity as "unfortunate", but nevertheless concluded that the husband's failure to act protectively was not the same as encouraging his brother to be abusive or enlisting him to be abusive towards the appellant. He also noted that the husband has initiated family therapy for their marriage difficulties. Moreover it is apparent that he doubted the veracity of a number of Ms Bhalla’s allegations for reasons which he gave.
Accordingly, whether the husband encouraged the violent behaviour of his brother toward the appellant was a factual issue considered and rejected by Dr Lennings.
The primary judge was correct to conclude that "[i]t is clear that the independent expert did take into account the conduct of the appellant's husband and did evaluate that passivity in relation to determining whether there was the relevant family violence".
Importantly Dr Lenning had regard to the statutory definition of “relevant family violence” Reg 1.21(1) when he reported that:
“(I)t cannot be concluded in the current assessment that Ms Bhalla had a reasonable fear of her husband or reasonable apprehension as to her safety or wellbeing from the behaviour of her husband”.
Ground 3 of the appeal also fails.
Conclusion
For these reasons, the appeal should be dismissed with costs.
I certify that the preceding fifty six (56) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Gilmour. Associate:
Dated: 22 April 2016
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