Kamath v Lakshman
[2018] WADC 34
•8 MARCH 2018
KAMATH -v- LAKSHMAN [2018] WADC 34
| DISTRICT COURT OF WESTERN AUSTRALIA | Citation No: | [2018] WADC 34 | |
| Case No: | APP:74/2017 | 19 JANUARY 2018 | |
| Coram: | WAGER DCJ | 8/03/18 | |
| PERTH | |||
| 15 | Judgment Part: | 1 of 1 | |
| Result: | Appeal dismissed | ||
| PDF Version |
| Parties: | RAGHA VENDRA SHIMOGA DAMODARA KAMATH NEETHA LAKSHMAN |
Catchwords: | Appeal Violence restraining order Reasonable apprehension of personal violence Protection from personal violence Turns on own facts |
Legislation: | Magistrates Court (Civil Proceedings) Act 2004 (WA) Restraining Orders Act 1997 (WA) District Court Rules 2005 (WA) |
Case References: | Nil |
JURISDICTION : DISTRICT COURT OF WESTERN AUSTRALIA
- IN CIVIL
- Applicant
AND
NEETHA LAKSHMAN
Respondent
ON APPEAL FROM:
Jurisdiction : MAGISTRATES COURT OF WESTERN AUSTRALIA
Coram : MAGISTRATE SCUTT
File No : PE RO 2946 of 2016
Catchwords:
Appeal - Violence restraining order - Reasonable apprehension of personal violence - Protection from personal violence - Turns on own facts
Legislation:
Magistrates Court (Civil Proceedings) Act 2004 (WA)
Restraining Orders Act 1997 (WA)
District Court Rules 2005 (WA)
Result:
Appeal dismissed
Representation:
Counsel:
Applicant : No appearance
Respondent : No appearance
Solicitors:
Applicant : Not applicable
Respondent : Not applicable
Case(s) referred to in judgment(s):
1 WAGER DCJ: Mr Kamath and Ms Lakshman had been married for about 10 years and had a son aged 9 years. They separated on 2 October 2016 when Ms Lakshman moved out of the family home taking their son with her.
2 Ms Lakshman applied for and was granted an interim violence restraining order as the person protected with Mr Kamath being the person who was bound by the order on 4 October 2016. The matter proceeded to final hearing in the Carnarvon Magistrates Court before her Honour Magistrate Scutt on 27 June 2017 when both parties were self-represented and when they both gave evidence of their respective positions. Her Honour made a final order in the same terms as the interim order on 28 June 2017.
3 This appeal was filed on 11 August 2017 which was about one month out of time but Mr Kamath had indicated that he sought an extension of time for the filing of the notice. Mr Kamath is self-represented and he has health problems. The delay did not prejudice Ms Lakshman to any greater extent than if the appeal had been filed on time. For the reasons I outlined at the hearing of the appeal I extend the time for filing pursuant to s 40(3) of the Magistrates Court (Civil Proceedings) Act 2004.
4 Following of the filing of this appeal, Mr Kamath attempted to file two further notices of appeal received by the court via Elodgement. Neither document was accepted nor deemed filed because both had been lodged as 'letters' which were in an incorrect form given that Mr Kamath was seeking to appeal a registrar's decision. Further no filing fee had been paid.
5 Despite neither appeal being filed, both issues were orally raised by Mr Kamath at the hearing of this appeal. The first relates to the date when Ms Lakshman filed her notice of intention in relation to the appeal. Ms Lakshman had been served with the notice of appeal on 23 August 2017 and had a 21-day period in which to file the notice of an intention pursuant to r 53(6) Rules of the District Court.
6 The notice of intention bore a stamped date of 21 September 2017, however, the court computer system recorded the date of filing as 12 September 2017. By letter dated 4 January 2018 to Mr Kamath the principal registrar said:
I advise the date for the District Court's computerised case management system shows the notice as having been filed on 12 September 2017 notwithstanding the fact the document is date stamped 21 September 2017. Unfortunately there are errors when the Registry staff fail to apply the date filed stamp to a document either at the time it is received or later. The computerised records are considered to be more accurate.
7 I accept the explanation provided to Mr Kamath by the principal registrar. The document was filed on 12 September 2017 and is within time.
8 Mr Kamath also objects to the respondent's submissions filed by Ms Lakshman. The document is dated 11 January 2018, but is noted as being filed on 15 January 2018. I am advised from the bar table that Mr Kamath received the submission by email rather than through a more appropriate form of service. Given that the service was effected by the person protected on the person who is bound by the order, it would have been more appropriate had Ms Lakshman arranged for an independent process server to serve the submissions on Mr Kamath rather than using email. However there is no suggestion that there was any additional note or material annexed to the submission. Ms Lakshman is self-represented. There has been no prejudice to Mr Kamath because the submission was received by him prior to the hearing and has been the subject of oral submissions in response by him at the appeal hearing.
9 The appeal is brought pursuant to s 40(1)(a) of the Magistrates Court (Civil Proceedings) Act2004. Section 40(4) of the Act provides that the District Court must decide the appeal on the material and the evidence before the Magistrates Court and any other evidence it gives leave to admit. Leave may only be given in exceptional circumstances pursuant to s 50(5).
10 The appeal is to be decided on the material that was before the Magistrates Court except where permission is given to add further material at the hearing. Mr Kamath has applied to lead evidence of a 10-page independent medical assessment and assessment of permanent impairment prepared by Dr Ozanne dated 22 May 2017. The magistrate did not receive the doctor's report, firstly, because the doctor was not being called to give evidence and Ms Lakshman did not agree to the report being tendered but, secondly, and more importantly, because the report was not relevant to the final order proceedings.
11 Dr Neil Ozanne, occupational physician, diagnosed a bilateral hernia that Mr Kamath claims resulted from an injury at work on 28 June 2012. The report details the history of the injury including medical intervention, the current status, examination findings, assessment and diagnosis, treatment requirements, prognosis and an assessment of level of impairment.
12 The magistrate accepted that Mr Kamath had the type of injury referred to in the report. Ms Lakshman did not dispute that he suffered an injury to the groin. Her Honour said that details of the injury are not relevant to the allegations that prior to October 2016 Mr Kamath was physically, sexually, emotionally and verbally abusive towards Ms Lakshman in the context of section 11A of the Restraining Orders Act 1997. Section 11A states:
11A. When VROs may be made
A court may make a VRO if it is satisfied that —
(a) the respondent has committed personal violence against a person seeking to be protected and the respondent is likely again to commit personal violence against that person; or
(b) a person seeking to be protected, or a person who has applied for the order on behalf of that person, has reasonable grounds to apprehend that the respondent will commit an personal violence against the person seeking to be protected,
and that making a VRO is appropriate in the circumstances.
13 These are the relevant issues to be determined by the magistrate at a final violence restraining order hearing and are the issues upon which evidence was led and considered by the person seeking to be protected.
14 Prior to the hearing on 27 June 2017 her Honour made rulings in relation to documents that could be viewed and ruled that some documents sought to be tendered by Mr Kamath could not be tendered. The medical report was a document that her Honour ruled to be inadmissible. I agree with her Honour's assessment. The medical report is not relevant to the issues to be determined. I will not receive it as further material to be considered.
15 On 27 June 2017 her Honour advised both parties about the test she was required to apply pursuant to section 11Aof the Restraining Orders Act. Her Honour said that 'Ms Lakshman needs to prove that there has been an act of abuse by you (Mr Kamath) upon her, that it is likely to happen again unless I make the order final or that she reasonably fears that there will be an act of abuse upon her if I don't grant the order. So that's the test I must apply. That is the law. It also has to be appropriate in the circumstances' (ts2). Her Honour further said:
I have to consider whether or not, even if there has been an act of abuse whether it is likely to happen again or she reasonably fears that it will, that a restraining order is appropriate in the circumstances. So they are the things that Ms Lakshman must prove. She must prove that on what is called the balance of probabilities. That means it's more likely than not. Okay. The only thing that I can take into account is evidence (ts 2).
16 Her Honour confirmed that anything said from the bar table would not be evidence and then gave concrete illustrations of what each party was required to do in order to follow the rules of cross-examination.
17 In giving her decision on 28 June 2017, her Honour concisely and correctly summarised the evidence given. Ms Lakshman's evidence was that in the six to seven months prior to leaving the marriage, she had been sexually assaulted and called a sex slave consistent with suffering emotional and sexual abuse. Mr Kamath threatened to self-harm if she did not do what he wanted consistent with emotional abuse.
18 Mr Kamath called her derogatory names consistent with emotional and verbal abuse.
19 She was placed under significant pressure to have sexual intercourse when Mr Kamath knew or ought to have known that she was not a consenting partner. This was consistent with sexual and emotional abuse.
20 She was called demeaning names and Mr Kamath suggested she was only concerned about her job and money. This was emotional abuse.
21 Mr Kamath slapped her to the face and arms and pulled her hair in the presence of her son on one occasion being physical abuse and emotional abuse. Ms Lakshman's evidence remained consistent under cross-examination.
22 In contrast, in evidence in chief Mr Kamath denied each and every allegation of physical, sexual, verbal or emotional abuse, however, in cross-examination he agreed he had hit Ms Lakshman when their son was present but that it was accidental. He subsequently said, 'it was just a touch on the head'.
23 Mr Kamath denied that he had called Ms Lakshman a prostitute, however, in cross-examination he agreed he had called her a prostitute but only after verbal provocation from her.
24 He admitted he had made her purchase a sex toy for him in circumstances where she did not want to do so. He did not make the purchase himself but made her do it.
25 He spoke of sexual dysfunction relevant to his injury, however, his evidence was generally consistent with Ms Lakshman not always being willing to engage in sexual activity when it was sought by him consistent with the purchase of the sex aid.
26 He agreed in cross-examination that a couple of days before she left he had taken a toy knife to her head as if to pretend to harm her. He said he was provoked into doing this following a discussion when he felt she was disrespectful to him about the value of his job as a taxi driver.
27 Her Honour made findings of credibility and assessed demeanour consistent with her unique position of seeing and hearing the witnesses. Her Honour described Ms Lakshman as a composed, quietly spoken lady who was careful and consistent and did not exaggerate accounts. This was illustrated by her evidence that the slap was limited to one slap and the pulling of her hair occurred for a short period of time only. Her Honour found that given the evidence of sexual coercion by a sex roster drafted by Mr Kamath that decreed Ms Lakshman had to have sex with him on five days each week, she appeared desensitised to a level of sexual abuse and coercion. The magistrate determined that Ms Lakshman was a truthful and credible witness and she accepted her version of events.
28 In contrast, her Honour accepted, consistent with Ms Lakshman's evidence, that Mr Kamath would constantly argue for hours if he did not get his way and that he would threaten to kill himself if she did not do as he wished. Her Honour noted that even making significant allowance for Mr Kamath being a self-represented litigant who was not legally trained in the conduct of the hearing he had spoken very forcefully to and had interrupted her Honour during the hearing. He re-stated his position repeatedly and persistently sought to tender documents that her Honour had ruled inadmissible. The magistrate concluded this was either because he understood a decision had been made not to accept the documents and ignored that fact and persisted nonetheless or because he did not understand the reasons why the documents would not be received and was entirely focused on having the documents before the court thereby repeatedly pressing the same issue.
29 The magistrate concluded the conduct was consistent with a finding that Mr Kamath had a tendency to argue and press his point without regard to the opposite position. It was consistent with Ms Lakshman's evidence that if he did not get what he wanted, he would argue to a point where he wore Ms Lakshman down until she gave in.
30 Her Honour also observed consistent with the evidence in Exhibit 1 that emails sent by Mr Kamath to Ms Lakshman in the week after the making of the interim order contained more information than just references to their son and included some impermissible communications. In light of all of her Honour's findings her Honour was satisfied on the standard of the balance of probabilities that the interim order should be made a final order.
31 Mr Kamath has filed a number of grounds of appeal. The first grounds of appeal dated 19 October 2017 are as follows:
1. Magistrate, Her Honour while making her decision states:
'There is no issue that the respondent suffered a pelvis injury four years ago'.
- In fact pelvis injury at workplace is the biggest issue.
2. Her Honour during her verdict has also stated:
'His apparent preparedness to call his 9-year-old son as a witness in these proceedings supports this finding and I'm of the view that he is a man with narcissistic tendencies'.
In response to your query whether your son can appear as a witness, in normal course of events, you have to apply to the Court and witness summons need to be served but if your witness agrees to appear then they may be able to be called on the day otherwise you should seek legal advice.
Regards,
Jennifer Ryan
Supervising Court Officer, Magistrates Court Carnarvon.
34 It appears Mr Kamath received legal advice in relation to his ability to call the child, however, consistent with her Honour's remarks, he did not consider the potential impact on the child of calling him to give evidence in proceedings between his parents relating to conflict including an incident when the child had been present when Mr Kamath had slapped Ms Lakshman. This ground has no merit.
3. Whoever has prepared the script of the final hearing on 27th June 2016 has deliberately shown my positive evidence which proves my innocence in dotted lines.
35 The transcript of proceedings of 27 June 2016 has been typed and formatted in a manner consistent with all other court transcripts. There are some noted pauses, however, there is very little material marked 'inaudible'. There is no evidence that there has been any deliberate omission from the transcript.
4. When the order was made final Magistrate her Honour states:
'I am satisfied on the evidence of the Applicant that there have been a number of acts as defined in the Act against her in 2016 while they were living together. Pursuant to section 11A of the Restraining Orders Act to be satisfied that a restraining order ought to be made final I must also be satisfied that a further act of abuse is likely to occur or that the applicant reasonably fears an act of abuse will occur in the absence of an order and that it is appropriate to grant the order'.
In my case there has been deliberate attempt to hide my evidence in the script with dotted lines. Complete audio recording of final hearing on 27th June 2017 will prove my innocence.
37 Mr Kamath has not sought to have the audio produced and there is no evidence to indicate that the transcript is an inaccurate record of the audio. There are very few pauses or inaudible responses noted. The ground of appeal has no merit.
5. During her evidence my wife has agreed that she was aware of the pelvis injury at workplace. Due to pelvis injury complication, my wife agreed during her evidence that I did not get erection when she was interested in sex for more than one occasion. Due to the fear of legal expenses for worker's compensation my wife is misled by whoever she is consulting.
38 Ms Lakshman agreed to the proposition that Mr Kamath could not sustain an erection on all occasions and on occasion she agreed she would have liked to have sex. Her evidence was however that she had been forced to have sex against her will consistent with the sex roster, had been called demeaning and belittling names and compared to a sex slave and was required to take part in sexual conduct at times when she was tired and had work responsibilities. It is this evidence of sexual and emotional abuse that is relevant to section 11A of the Act. The ground has no merit.
6. All the financial matters were controlled by my wife because of my pelvis injury complications. She was happy with finance matters and also accused me being violent is surprising.
39 Ms Lakshman gave evidence that she was happy to be in control of the finances but this evidence was separate and distinct from her evidence about the physical, sexual and emotional harm she suffered prior to separation. The ground of appeal has no merit.
40 Further grounds of appeal were filed on 13 November 2017. Mr Kamath set out s 12 of the Restraining Orders Act 1997 in full. He then referred to errors of law and errors of fact he asserted had been made by her Honour:
Ground (a) Although my behaviour was led to present family dispute was as direct consequence of pelvis injury at workplace. Her Honour has not considered as required under section 12(b) Violence Restraining Order Act 1997 [sic].
41 Section 12(1)(b) states:
When considering whether to make a VRO and the terms of the order the Court is to have regard to the following –
...
(b) the need to prevent behaviour that could reasonably be expected to cause the person seeking to be protected to apprehend that they will have personal violence committed against them.
42 Her Honour considered the evidence of the physical, sexual and emotional harm prior to separation together with Mr Kamath's determination to reunite with his wife and child regardless of the matters about which evidence had been given. The decision in relation to the prevention of behaviour did not relate to the issue of Mr Kamath's pelvis injury at the workplace. This ground has no merit.
Ground (b) My wife has no problem with my behaviour, in relation to my son and no welfare is involved in child matter.
More over after my pelvis injury at work place I have spent lot of time, caring with my son P. Because of my injury condition I only working part time until I moved to Carnarvon.
Although I have mentioned these facts her Honour has not considered these facts as required under section 12(c), Violence Restraining Order act 1997 [sic].
12. Matters to be considered by court generally
(1) When considering whether to make a VRO and the terms of the order a court is to have regard to the following —
…
(c) the need to ensure the wellbeing of children by protecting them from personal violence, behaviour referred to in paragraph (b) or otherwise being exposed to personal violence;
Ground (c) Although in several email communications and directional hearing. I have disclosed facts about my financial hardship (sharing accommodation with pelvis injury complication after the VRO, Her Honour has not considered as required under section 12(d), Violence Restraining Order Act 1997.
All my joint accounts are freeze and although I equally own property ... I do not get any rent after VRO.
With my pelvis injury complication I'm compelled to work long hours driving taxi at Carnarvon.
When considering whether to make a VRO and the terms of the order a Court is to have regard to the following –
...
(d) the accommodation needs of the respondent and the person seeking to be protected.
46 Ms Lakshman principally has the care of the child and lives in accommodation most suited to that role.
47 Mr Kamath lives in Carnarvon where he is a taxi driver. Issues in relation to apportionment of matrimonial assets are not relevant to the final violence restraining order hearing. The ground has no merit.
Ground (d) Although I concluded my evidence showing independent medical assessment by Dr Neil Ozanne accepted at WorkCover and assured Her Honour that this situation will not arise in future, Her Honour has not considered my assurance as required under section 12(a), Violence Restraining Order Act 1997.
48 Section 12(1)(a) states:
When considering whether to make a VRO and the terms of the order a Court is to have regard to the following –
(a) the need to ensure that the person seeking to be protected is protected from personal violence.
49 Her Honour properly considered the evidence and reached a determination that the violence restraining order needed to be made final in order to ensure Ms Lakshman's protection. The medical report of Dr Ozanne is not relevant to this consideration.
Ground (e) Although in my evidence I have disclosed the facts about my financial hardship and stress of being away from my wife and son due pelvis injury related complication, Her Honour has not considered these facts as required under section 12(e) Violence Restraining Order Act 1997.
50 Section 12(1)(e) states:
When considering whether to make a VRO and the terms of the order a Court is to have regard to the following –
(e) hardship that may be caused to the respondent if the order is made.
51 Her Honour accepted evidence that Mr Kamath was working and that he was living separately from Ms Lakshman and his son at the time of the application. Her Honour properly considered s 12(1)(e) of the Act.
Ground (f) Although I have disclosed about my legal proceeding and expenses for worker's compensation, Her Honour has not considered these facts as required under section 12(g) Violence Restraining Order Act 1997.
52 Section 12(1)(g) states:
When considering whether to make a VRO and the terms of the order a Court is to have regard to the following –
(g) other current legal proceedings involving the respondent or the person seeking to be protected.
53 Proceedings relating to worker's compensation are not relevant to the issues that her Honour was required to determine. They are not proceedings that are relevant to the abuse issues relevant to the violence restraining order final hearing.
Ground (g) I do not have any history of family violence and previous criminal convictions. I have also requested for information and record of my breach at Legal Aid.
54 (Mr Kamath then refers to an alleged breach of a violence restraining order).
55 Mr Kamath asserts that her Honour has not considered these facts as required under s 12(1)(h) Restraining Orders Act 1997.
56 Section 12(1)(h) states:
When considering whether to make a VRO and the terms of the order a Court is to have regard to the following –
(h) any criminal convictions of the respondent.
57 The court is to have regard to all of the factors in s 12 of the Restraining Orders Act 1997 including:
(j) other matters the Court considers relevant.
58 The court did not receive any evidence of an alleged breach of violence restraining order and there is no evidence of previous criminal convictions for Mr Kamath. Her Honour, however, found on balance of probabilities that Mr Kamath had behaved in a physically, sexually and emotionally abusive manner towards Ms Lakshman in the six or seven months prior to separation. This ground has no merit.
Ground (h) There is no previous history of similar behaviour before VRO. Her Honour has not considered these facts as required under section 12(i), Violence Restraining Order Act 1997.
59 Section 12(1)(i) states:
When considering whether to make a VRO and the terms of the order a Court is to have regard to the following –
(i) any previous similar behaviour of the respondent whether in relation to the person seeking to be protected or otherwise.
60 Previous behaviour is one of the many factors that the court is required to consider. Her Honour considered the evidence of past conduct in relation to physically, sexually and emotionally abusive behaviour in making an assessment in respect of harm.
Ground (i) Although a Court is to have regard to the matters set out in subsection (1)(a), (b) and (c) as being of primary importance, Her Honour has not considered as required under section 12(2) Violence Restraining Order Act 1997.
61 Section 12(2) states:
A Court is to have regard to the matters set out in subsection (1)(a), (b) and (c) as being of primary importance.
62 These subsections are:
When considering whether to make a VRO and the terms of the order a Court is to have regard to the following –
(a) the need to ensure that the person seeking to be protected is protected from personal violence;
(b) the need to prevent behaviour that could reasonably be expected to cause the person seeking to be protected to apprehend that they will have personal violence committed against them;
(c) The need to ensure the wellbeing of children by protecting them from personal violence, behaviour referred to in paragraph (b) or otherwise being exposed to personal violence.
63 Her Honour did not make a violence restraining order in respect of the child.
64 Her Honour considered the evidence carefully before reaching a determination in relation to the need to prevent behaviour by Mr Kamath that could be reasonably expected to cause Ms Lakshman to apprehend that she would have personal violence committed against her and was protected from personal violence. There is no merit in this ground of appeal.
65 I determine that none of the grounds of appeal have been made out. The magistrate made the decision to make the order final after fully considering the relevant evidence, weighing up the facts after hearing from both parties and assessing the credibility and demeanour of both parties. There is no demonstrable error. The magistrate's decision is carefully considered and properly made. The appeal is dismissed.
Result
1. The appellant is granted an extension of time to appeal until 11 August 2017.
2. Appeal dismissed.
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