KESHARI & LUDHANI - [2019] FamCAFC 79

FAMILY COURT OF AUSTRALIA

KESHARI & LUDHANI

[2019] FamCAFC 79

FAMILY LAW – APPLICATIONS IN AN APPEAL – FURTHER EVIDENCE – Where none of the further evidence sought to be adduced satisfies the requirements of CDJ v VAJ (1998) 197 CLR 172 – Where much of the further evidence is inadmissible, either because of its form, or its lack of relevance – Applications dismissed.

FAMILY LAW – APPEAL – LEAVE TO APPEAL – Where the facts relied on by the applicant are substantially the same as the grounds of appeal – Where the grounds of appeal are incompetent and/or incomprehensible – Where there is no merit in any of the grounds of appeal – Where there is no basis to grant leave to appeal – Application for leave to appeal and, if necessary, the appeal be dismissed.

Family Law Act 1975 (Cth) ss 58, 93A(2)

CDJ v VAJ (1998) 197 CLR 172; [1998] HCA 67
Medlow & Medlow (2016) FLC 93-692; [2016] FamCAFC 34

APPELLANT:

Mr Keshari

RESPONDENT:

Ms Ludhani

FILE NUMBER:

PTW

6259

2017

APPEAL NUMBER:

WEA

2018

DATE DELIVERED:

10 May 2019

PLACE DELIVERED:

Perth

PLACE HEARD:

Perth

JUDGMENT OF:

Strickland, Aldridge & Duncanson JJ

HEARING DATE:

7 May 2019

LOWER COURT JURISDICTION:

Family Court of Western Australia

LOWER COURT JUDGMENT DATE:

26 July 2018

LOWER COURT MNC:

[2018] FCWA 135

REPRESENTATION

THE APPELLANT:	In Person by telephone link
THE RESPONDENT:	No appearance

Orders

The Applications in an Appeal filed by the appellant husband respectively on 11 February 2019 and 28 February 2019, be dismissed.
The application for leave to appeal, and if necessary, the appeal, be dismissed.

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

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

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

IN THE FULL COURT OF THE FAMILY COURT OF AUSTRALIA AT PERTH

Appeal Number: WEA 29 of 2018
File Number: PTW 6259 of 2017

Mr Keshari

Appellant

And

Ms Ludhani

Respondent

REASONS FOR JUDGMENT

Introduction

By way of Notice of Appeal filed on 22 August 2018 Mr Keshari (“the husband”) seeks leave to appeal, and if leave is granted, appeals from orders made on 26 July 2018 by O’Brien J. The application for leave to appeal, and the appeal if leave is granted, is opposed by Ms Ludhani (“the wife”).
The husband ultimately attended the hearing of the appeal by telephone, but there was no appearance by the wife. We explained to the husband that attendance by the wife was unnecessary and that in the circumstances it was appropriate to proceed on the basis that the wife opposed his application for leave to appeal, and if leave was granted, the appeal.
The orders appealed from summarily dismissed the husband’s Application for Rescission of a Divorce Order and provided for the Divorce Order to take effect. On appeal the husband seeks that the Divorce Order be rescinded, and thus the Divorce Order not take effect.

Applications in an appeal

The husband has filed three Applications in an Appeal. The first, filed on 11 February 2019, in effect sought leave to adduce further evidence, although that is not the specific order that is sought. The further evidence is contained in an affidavit also filed on 11 February 2019, and comprises a number of court documents (which are before the Court in any event) and correspondence, as well as two psychologist’s reports. The second application, filed on 28 February 2019, also in effect seeks leave to adduce further evidence, although again that is not the specific order sought. The further evidence is contained in an affidavit also filed on 28 February 2019, and comprises a newspaper article reporting on a decision of the High Court of India, the marriage invitation and marriage certificate, as well as other material said to be evidence that “Australian Law considers the cultural, Language and emotional value of Immigrants”.
The third application, filed on 18 April 2019, sought a number of orders, namely:
1.Appellants Appeal Book Index and supporting documents and Volume of disputed documents excluded by the Appeal Registrar from a Appeal Index, to be accepted replacing the Manupulated Appeal Index by Western Region Appeal Registrar.
2.Appeal to be Listed for Hearing before Judges of Full Court (Family Court of Australia) instead of Members of Full Court.
3.Western Region Appeal Registrar of Family Court of Australia should communicate all the sealed documents served on Respondent, to the Appellant.
4.Appeal be assigned before a Fair Registrar for communicating facts and documents.
5.If Appellant’s Orders 1, 2 3 and 4 are likely to be delayed, vacate the Court date 7 May 2019 to a later date.
(As per original)
We will address the first two applications later in these reasons when considering the application for leave and the grounds of appeal.
As to the third application, filed on 18 April 2019, we dismissed the same at the hearing of the appeal, and we now provide our reasons for that as follows.
The application is entirely misconceived. The orders sought, and the affidavit in support, reveal the lack of understanding by the husband as to the process that is applied in all appeals from decisions of judges of the Family Court of Western Australia.
Although it is readily apparent from the court file that the Appeal Registrar has painstakingly, over a significant period of time, and via a substantial number of emails, attempted to explain the process to the husband, the husband has refused to listen and persists with his mistaken view of what should happen in this appeal. Indeed, without any logical basis the husband has alleged that the Appeal Registrar has not only “manipulated” and “suppressed” the documents, but has acted “fraudulently” and without jurisdiction in the preparation of the appeal for hearing.
For example, following the making of the usual orders on 19 November 2018 to prepare the appeal for hearing, the Appeal Books sought to be filed by the husband on 4 February 2019 did not comply with the Family Law Rules 2004 (Cth) (“the Rules”), or Practice Direction No. 1 of 2017, issued by the Chief Justice in relation to the conduct of appeals. As a result, in order to assist the husband and ensure the appeal progressed, the Appeal Registrar took it upon himself to prepare the required Appeal Books in electronic form. The husband complains about that and that is the focus of order 1 sought in his application. He claims that his documents were “disputed” and “excluded”, “without jurisdiction”, and he seeks that his documents replace the “manipulated” appeal documents prepared by the Appeal Registrar. Further, he claims that because the documents do not have a court seal, a fraud has been committed. There is no basis for these allegations, and it is appropriate that the electronic appeal books prepared by the Appeal Registrar be before this Court for the purposes of the appeal.
We also point out that, although the Appeal Books before us are those prepared electronically by the Appeal Registrar, in the usual way, the Appeal Registrar advised the husband on 15 February 2019, and subsequently, that the non‑compliant Appeal Books would be stamped as received and it would be a matter for this Court whether the husband would be permitted to rely on those Appeal Books. We are prepared to treat this application as an application made by the husband to that effect, but, given the non-compliance, we are not prepared to allow the husband to rely on those Appeal Books when we have the electronic Appeal Books prepared by the Appeal Registrar.
In relation to the order sought in paragraph 2 of the application, the husband has chosen not to accept that the appeal, whether described as being before “Judges” of the Full Court, or “Members” of the Full Court, is being heard by the Full Court of the Family Court of Australia. Indeed, the Appeal Registrar has informed the husband of that on numerous occasions.
As to the order sought in paragraph 3 of the application, by a direction made by the Appeal Registrar on 7 January 2019, all documents filed by the husband in accordance with the orders made on 19 November 2018 were to be sent by the court to the wife, rather than being served on her by the husband. This direction was made because the husband advised the Appeal Registrar that “there are current bail conditions in place which prevent the husband communicating with the wife”.
Subsequent to the direction, we are satisfied that the Appeal Registrar has not only complied with it, but the court has sent copies of all documents filed by the husband to the wife, and again the Appeal Registrar has duly informed the husband of that on a number of occasions.
In relation to paragraph 4 of the orders sought, the basis of that order is the husband’s misconceived view that the Appeal Registrar has “manipulated” and “suppressed” his documents, and acted “fraudulently”. There is no basis for these allegations, and thus no basis to make the order sought.
As to the final order sought, as can be seen, the application to vacate the hearing on 7 May 2019, was only sought if there was any delay in making the orders sought in paragraphs 1 – 4 of the application. Given that there has been no delay in addressing those orders, there was no basis to vacate the hearing on 7 May 2019.
We also record that the husband initially failed to appear at the hearing on 7 May 2019. It seems that that was because he assumed, incorrectly, that merely by making an application to vacate the hearing, that that would happen and he would be provided with a new date. That is apparent from his email correspondence with the Appeal Registrar, but the Appeal Registrar disabused the husband of that notion in his replies, and made it patently clear to him that the application would be considered by the Full Court on 7 May 2019, and that he would need to be present because, if the application was not successful, the appeal would proceed.
Given the husband’s failure to appear we had the option to dismiss his application and his appeal, but we chose to have the court contact him by telephone, and we then conducted the hearing via that medium. To repeat, we dismissed the application to vacate the hearing and proceeded to hear the appeal.

Background

The husband was born in 1977, and is currently 41 years of age. The wife was born in 1980, and is currently 39 years of age. Both parties migrated to Australia in June 2010.
The parties’ marriage was solemnised in 2006 and registered under the overseas legislation in 2008. The marriage was valid and recognised in Australia.
There is one child of the marriage, born in 2008, and who is currently 10 years of age.
On 2 October 2016 the wife left the matrimonial home with the child.
In late 2016 the wife obtained an interim violence restraining order against the husband. Final orders were made in the same terms in 2017 (“VRO”). The husband’s appeal against that decision was later dismissed.
In May 2017 the wife commenced parenting proceedings in the Family Court of Western Australia. Interim orders were made on 5 July 2017 granting the wife sole parental responsibility for the child and provide that he live with her and spend two hours per fortnight with the husband. Those interim orders remain in place.
On 9 October 2017 the wife filed an application for divorce in the Family Court of Western Australia. That application asserted that the parties separated on 2 October 2016 and, at that date, she regarded the marriage as over, and there was no resumption of cohabitation thereafter.
On 22 January 2018 the husband filed a response setting out a number of grounds upon which the divorce application be dismissed. As the primary judge said at [7]:
…None of those grounds suggested that the central factual contentions in the wife’s application were false. Rather, the husband made various assertions as follows:
1.that, in parenting proceedings, the wife had obtained orders on fraudulent grounds;
2.that he had requested copies of certain court documents and (by inference) they had not been supplied; and
3.he made various assertions regarding errors he would identify in the magistrate’s decision in the VRO proceedings, and procedural aspects of the District Court proceedings in respect of which he was awaiting judgment, including allegations that the wife had breached certain orders and procedural requirements.
The divorce application was heard and a Divorce Order was made by a registrar on 25 January 2018.
On 29 January 2018 the husband filed an Application in a Case and supporting affidavit seeking a rescission of the Divorce Order. The husband asserted there had been a miscarriage of justice by reason of fraud. The primary judge summarised those assertions at [8] as follows:
1.“Applicant has given primary reasons for Application for divorce, Present Parental Orders Obtained on fraud grounds that dad is undergoing Psychiatrist Assessment and the Respondent was not part of the Hearing”;
2.he raised a complaint that documents requested by him from the Court had not been received within a specific timeframe;
3.he referred to the final VRO order, asserting accurately that he was awaiting judgment on his appeal against that order; and
4.importantly, for reasons which will appear, he said: “applicant must convince Family Court that there is separation for 1 year before filing for Divorce. Separation was without the Consent of the Respondent, because VRO was forced on Respondent, In spite of Permanent damage due to … Injury at [the husband’s employer]. Hence, considering the Fraud done in obtaining parental orders, error of law and District Court Pending Decision, I kindly request the Family Court to Order that the Proceeding be reheard”.
The wife filed a response on 14 March 2018. The content of that response indicated, and her submissions at a subsequent hearing made clear, that the wife sought summary dismissal of the husband’s application. The husband opposed summary dismissal and sought that the application proceed to trial.
His Honour heard the application on 1 May 2018 and determined to summarily dismiss the husband’s application.

The application for leave to appeal

The test that is now applied in determining whether to grant leave to appeal is whether, in all the circumstances, the decision is attended by sufficient doubt to warrant it being reconsidered by the Full Court, and whether substantial injustice would result if leave were refused, supposing the decision to be wrong (Medlow & Medlow (2016) FLC 93-692).
The facts relied upon by the husband in support of the application for leave to appeal are substantially the same as the grounds of appeal asserted by him if leave to appeal is granted. Accordingly, it is convenient to address those grounds of appeal first, because depending upon whether they have merit or not, that will inform whether leave to appeal should be granted or refused.

The grounds of appeal

As will readily become apparent, many if not all of the grounds of appeal are incompetent and/or incomprehensible, and that defect is not assisted by the contents of the husband’s written Summary of Argument. However, in order to assist the husband, during the hearing we invited him to explain his complaints to us and to provide us with at least his top three complaints. The husband attempted to do that, but he was not prepared to limit his complaints to only three, and reverted to relying on all of the grounds of appeal appearing in his Notice of Appeal.
The grounds of appeal are as follows:
1.Respondent’s failure to file and serve, response to an Application in a Case, within 2 days before hearing date on 20-02-2018.
2.Directional Hearing on 12/02/2018 was not cunducted fairly.
3.Respondent has failed to file and serve Response to an Application in a Case, within 2 days before Court date (12-02-2018).
4.Honourable Justice Orders that “The Respondent, [Ms Ludhani], file and serve any response and affidavit in support by close of Registry on 23 March 2018” is an error of law and substantial Injustice.
5.Written reasons were provided by CORAM : O'BRIEN J. Coram merely means before or in the presence of another individual Coram non judice, is said of those acts of a court which has no jurisdiction, either over the person, the, cause, or the process. Such acts have no validity.
6.Published decision has only declared wife as Domiciled, hence provides suppression of fact or evidence.
7.Although Applicant or husband has challenged the separation written reasons provided as Coram: O'Brian J, provides evidence that he did not have any grounds to take effect the Divorce as a Justice, he has only made fraudulent attempt to convince the Applicant, that divorce will come into effect one month from 26 Jul 2018.
8.Applicant (Husband) has disclosed the fact that the present Parental orders are made on Fraud Grounds that dad is undergoing psychiatric assessment, dad has also disclosed that Mom has full time job as Asset manager at [wife’s employer], and hence leaves her son unattended on several occasion. But still CORAM: O'Brien J make an order by operation of s53(3), hence provides evidence of fraud and suppression of evidence.
9.My wife being a main Initial Applicant in child matter, her proceeding was removed from the cases awaiting allocation of a trial date and was also removed from the call over scheduled on 27/07/2018.
10.Hon Magistrate Martino has made an fraudulent attempt to direct the child to be independently represented by a children’s Lawyer from LAWA, he has made his last attempt to create a new ground for Divorce.
11.Appeal and decision dismissed for VRO by District Court WA and Court of Appeal Supreme Court WA does not have any validity. Written reasons and Orders were made by Coram of Individual person which does not have any validity.
12.Act that allows the Appeal at FAMILY COURT OF AUSTRALIA, is Family Law Act 1975.
(As per original)
Immediately, it can be seen that grounds 1 – 4 inclusive are incompetent. They complain about the alleged failure of the wife to comply with requirements as to the timely filing of documents, the conduct of a directions hearing, and orders made in the proceedings prior to the hearing by his Honour of the husband’s application on 1 May 2018, and the making of the orders on 26 July 2018.
The appeal is only against the orders made on 26 July 2018, and not any prior orders, and there is no application to extend the time to file an appeal against those orders. Further, whether or not the wife failed to comply with the requirements for the timely filing of documents, or whether or not the directions hearing was conducted fairly, are not matters that can be the subject of any appeal against the orders made on 26 July 2018. We hasten to add that we are not making any determination of the complaints by the husband as to the earlier proceedings, and in particular we have no basis to find that his Honour failed to conduct the directions hearing on 12 February 2018 “fairly”.
As to Ground 5, that is also incompetent, and frankly is a nonsense. The words “CORAM : O’BRIEN J” appearing on page 1 of the reasons for judgment merely signify that his Honour was the judge who heard and determined the application.

The husband also suggests in his written Summary of Argument that the fact that the orders were not signed by the Principal Registrar is “evidence that fraud was involved in forcing the Divorce on a Family with Trauma for Workplace injury”, and he cites the rules of the Supreme Court of Western Australia. This is a submission which not only has no basis, but demonstrates again the lack of understanding by the husband of the workings of the Family Court of Western Australia. In a similar vein, again incorrectly and without any basis, the husband submitted that without a signature and a seal, the orders were not “sufficiently authenticated” and a “fraud” has been committed as well as his Honour’s orders being made without jurisdiction. Again, errant nonsense, and for this Court to have to address the same is a complete waste of time.
As to Ground 6, the complaint is that although his Honour identified the wife as being domiciled in Australia, his Honour suppressed the fact that the husband is also domiciled in Australia. There was no suppression here; it is only necessary for one party to be domiciled in Australia for there to be jurisdiction.
Ground 7 is a ground that requires no comment other than to say it is not only incompetent, but it is incomprehensible. In his written Summary of Argument, the husband suggests that the further evidence he seeks leave to present, supports this ground of appeal. However, as will be seen, that evidence will not be admitted, and in any event, even if it was, having read that evidence to determine whether it can be received, it does not render this ground of appeal intelligible.
Grounds 8 – 11 inclusive are grounds that are also incompetent. As his Honour explained in his reasons for judgment, any complaint that the husband has in relation to the separate parenting proceedings, the VRO proceedings, or the appeal in relation to those proceedings, is irrelevant to whether or not the Divorce Order should be rescinded. Further, we consider that the allegations of “fraud” and “suppression of evidence” are baseless.
We can do no better than set out in full his Honour’s conclusions in relation to the husband’s Application to Rescind the Divorce Order as follows:
35It must first be observed that the husband does not dispute the proposition that the parties have not lived together since a date more than 12 months prior to the filing of the wife’s application for divorce. By her actions in leaving the home, and obtaining an interim VRO two days later, which she then pursued through to a contested final hearing, the wife clearly demonstrated, and conveyed to the husband, her intention to separate.
36While I do not doubt the sincerity of the husband’s culturally based belief that a separation of married persons occurs only when both parties agree to that separation, that belief is at odds with the clear position under Australian law. Even if I accept at its highest the husband’s evidence that at no stage has he agreed to a separation, that evidence is not capable of grounding an application for rescission of the divorce order.
37For the reasons set out earlier, even if the husband was able to establish that there had been a miscarriage of justice in either the parenting proceedings, the VRO proceedings, or the appeal in the District Court against the making of the final VRO, that could not ground an application for rescission of the divorce order. The tenor of the husband’s submissions suggests that he has not appreciated the need for the asserted miscarriage of justice to have occurred in circumstances directly connected to the making of the relevant order.
38The husband has not articulated any asserted miscarriage of justice in the divorce proceedings. He has not asserted the occurrence in that proceeding (sic) any fraud, perjury, suppression of evidence or other relevant circumstance capable of leading to a conclusion that a miscarriage of justice occurred.
39It follows that the husband’s application for a rescission of the divorce order, even if his evidence and submissions are taken at their highest, has no reasonable likelihood of success. More than that, the application is, with no disrespect to the husband or to his cultural beliefs, doomed to fail. To permit its continuation in those circumstances would be to permit an abuse of process.
40The husband’s application for rescission of the divorce order will be dismissed.
41By operation of s 55(3) of the Act, the divorce order will take effect at the expiration of a period of one month from today.
Finally, there is Ground 12, and that is equally incompetent and is not a proper ground of appeal.
We return to the two applications seeking leave to adduce further evidence.
Section 93A(2) of the Family Law Act 1975 (Cth) (“the Act”) allows for this Court to receive further evidence, and the principles that apply are well settled. In particular we refer to the High Court of Australia decision of CDJ v VAJ (1998) 197 CLR 172 where McHugh, Gummow and Callinan JJ said this:
109.One consideration in construing s 93A(2) is its remedial nature. Its principal purpose is to give to the Full Court a discretionary power to admit further evidence where that evidence, if accepted, would demonstrate that the order under appeal is erroneous. The power exists to facilitate the avoidance of errors which cannot be otherwise remedied by the application of the conventional appellate procedures. A further, but in practice subsidiary, purpose is to give the Full Court a discretion to admit further evidence to buttress the findings already made.
…
111.…The power to admit the further evidence exists to serve the demands of justice. Ordinarily, where it is alleged that the admission of new evidence requires a new trial, justice will not be served unless the Full Court is satisfied that the further evidence would have produced a different result if it had been available at the trial. Without that condition being satisfied, it could seldom, if ever, be in the interests of justice to deprive the respondent of the benefit of the orders made by the trial judge and put that person to the expense, inconvenience and worry of a new trial.
None of the further evidence sought to be adduced by the husband satisfies the requirements of CDJ.
First, much of the further evidence is inadmissible, either because of its form, or its lack of relevance. For example, that applies to the correspondence, the psychologist’s reports, the newspaper article and many of the other documents annexed to the affidavit filed on 28 February 2018. Secondly, none of the evidence would have made any difference to the decision of the primary judge if that evidence was before his Honour. His Honour explains at [35] that:
…the husband does not dispute the proposition that the parties have not lived together since a date more than 12 months prior to the filing of the wife’s application for divorce. By her actions in leaving the home, and obtaining an interim VRO two days later, which she then pursued through to a contested final hearing, the wife clearly demonstrated, and conveyed to the husband, her intention to separate.
None of the further evidence goes to those issues, and none demonstrates that in the divorce proceedings there has been “a miscarriage of justice by reason of fraud, perjury, suppression of evidence or any other circumstances” (s 58 of the Act).
Thus, we will be dismissing the applications.

Conclusion

There being no merit in any of the grounds of appeal, there can be no basis for the husband to be granted leave to appeal, and that application will be dismissed. We note, out of abundant caution, that even if leave to appeal was granted, given our findings in relation to the grounds of appeal, the appeal would also be dismissed.

I certify that the preceding fifty (50) paragraphs are a true copy of the reasons for judgment of the Honourable Full Court (Strickland, Aldridge & Duncanson JJ) delivered on 10 May 2019.

Legal Associate:

Date: 10 May 2019