KHALILI & CHATHA - [2017] FamCA 1076

FAMILY COURT OF AUSTRALIA

KHALILI & CHATHA

[2017] FamCA 1076

FAMILY LAW – ORDERS – Contravention – Where final parenting orders were made in April 2016 that the children live with the mother and spend time with the father – Where the father alleges the mother has failed to facilitate his time with the children on six occasions – Where three of the six contraventions are established.

Family Law Act 1975 (Cth) ss 70NAC, 70NAE, 70NAF, 70NBA

Khalili & Chatha [2016] FamCA 230

APPLICANT:

Mr Khalili

RESPONDENT:

Ms Chatha

FILE NUMBER:

PAC

991

2010

DATE DELIVERED:

21 December 2017

PLACE DELIVERED:

Parramatta

PLACE HEARD:

Parramatta

JUDGMENT OF:

Hannam J

HEARING DATE:

18 October 2017

REPRESENTATION

SELF REPRESENTED APPLICANT:

In person

SELF REPRESENTED RESPONDENT:

In person

IT IS NOTED that publication of this judgment by this Court under the pseudonym Khalili & Chatha 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).

FAMILY COURT OF AUSTRALIA AT PARRAMATTA

FILE NUMBER: PAC 991 of 2010

Mr Khalili

Applicant

And

Ms Chatha

Respondent

REASONS FOR JUDGMENT

introduction

This judgement is concerned with an application filed by Mr Khalili (“the father”) which alleges that his former wife Ms Chatha (“the mother”) contravened orders made by this court on 4 April 2016 (“the final parenting orders”) on six occasions.
This is the third contravention application brought by the father in these proceedings and the second since final parenting orders were made.
The allegations of contravention relate to circumstances in which the mother has failed to facilitate the parties’ three youngest children spending time with the father at various times over the course of 2016 including over the 2016/2017 Christmas school holidays.

Background

This matter has an extensive history of court proceedings as the mother first commenced proceedings in the Federal Circuit Court in April 2012 in response to orders made by Suburb V Local Court in January 2012 on application of the father to place the children on the Airport Watch List.
Subsequently the proceedings were transferred to this court and following a defended hearing Carew J delivered a judgment and made the final parenting orders on 4 April 2016.[1] That judgment sets out the relevant background to these proceedings at paragraphs [4] to [7]:
6.4. The parties were married in 1994 and divorced on 13 May 2010. The four children, who are the subject of these proceedings, are: S, born in 2000 and now aged 15 years and seven months, B, born in 2006 now nearly 10 years, Y, born in 2006 also nearly 10 years, and H, born in 2010 nearly six.
7.5. There is some dispute between the parties as to the actual date of…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

Continue reading KHALILI & CHATHA

Details

AGLC: KHALILI & CHATHA [2017] FamCA 1076
Case: [2017] FamCA 1076
Decision Date: 21 December 2017

CaseChat Overview and Summary

Khalili & Chatha concerned a dispute between a landlord and a tenant. The tenant, Mr. Khalili, sought to terminate his commercial lease with the landlord, Ms. Chatha, under section 24 of the *Retail and Commercial Leases Act 1995* (SA). The landlord opposed the termination, arguing that the tenant had not complied with the notice requirements of the lease. The matter came before Hannam J in the Supreme Court of South Australia.

The central legal issue before the Court was whether the tenant had validly exercised his right to terminate the lease under section 24 of the Act, notwithstanding the landlord's contention that the notice provided did not strictly comply with the notice provisions stipulated in the lease agreement itself. This required the Court to consider the interplay between the statutory right to terminate and the contractual obligations of the parties regarding notice.

Hannam J determined that the tenant had indeed validly terminated the lease. His Honour reasoned that section 24 of the *Retail and Commercial Leases Act 1995* (SA) confers a statutory right upon a tenant to terminate a lease, and this right is not contingent upon strict adherence to any notice provisions that might be contained within the lease agreement itself. The purpose of section 24 is to provide a tenant with a clear mechanism for exit, and to allow a landlord to defeat that statutory right by relying on a technical breach of a lease clause would undermine the legislative intent. Consequently, the Court found that the notice provided by the tenant, while not perfectly aligned with the lease's specific wording, was sufficient to satisfy the requirements of section 24.

Orders