Khatri and Barber (No. 2)
[2021] FamCAFC 158
•23 August 2021
FAMILY COURT OF AUSTRALIA
Khatri & Barber (No. 2) [2021] FamCAFC 158
Appeal from: FCoA orders dated 26 March 2021;
Barber & Khatri (No. 2) [2021] FamCA 296
Appeal number(s):
SOA 20 of 2021;
SOA 32 of 2021
File number(s):
MLC 9649 of 2018
Judgment of:
STRICKLAND, ALDRIDGE & TREE JJ
Date of judgment:
23 August 2021
Catchwords:
FAMILY LAW – APPEAL – Appeals against interim parenting orders and refusing a stay of those orders – Where parenting orders are inconsistent with a family violence order – Procedural fairness – Where the primary judge considered the relevant family violence order provisions of the Family Law Act 1975 (Cth) – Weight challenge – No ground of appeal established – Application in an Appeal to adduce further evidence allowed in part – Appeal dismissed – No order as to costs.
Legislation:
Family Law Act 1975 (Cth) Pt VII, ss 68P, 68Q, 68R, 68S
Cases cited:
Aldridge & Keaton (Stay Appeal) [2009] FamCAFC 106
Concrete Pty Ltd v Parramatta Design and Developments Pty Ltd (2006) 229 CLR 577; [2006] HCA 55
De Winter v De Winter (1979) 23 ALR 211
Gronow & Gronow (1979) 144 CLR 513; [1979] HCA 63
House v The King (1936) 55 CLR 499; [1936] HCA 40
Division:
Appeal Division
Number of paragraphs:
47
Date of hearing:
11 August 2021
Place:
Heard in Melbourne, delivered in Cairns
The Appellant:
Litigant in person
The Respondent:
Litigant in person
Solicitor for the Independent Children’s Lawyer:
Victoria Legal Aid (did not participate)
ORDERS
SOA 20 of 2021;
SOA 32 of 2021
MLC 9649 of 2018APPEAL DIVISION OF THE FAMILY COURT OF AUSTRALIA
BETWEEN: MS KHATRI
Appellant
AND: MR BARBER
Respondent
INDEPENDENT CHILDREN'S LAWYER
ORDER MADE BY:
STRICKLAND, ALDRIDGE & TREE JJ
DATE OF ORDER:
11 AUGUST 2021
THE COURT ORDERED ON 11 AUGUST 2021 THAT:
1.The appellant mother be granted leave to rely on her Amended Summary of Argument filed on 10 August 2021.
2.The appellant mother’s Amended Application in an Appeal filed on 10 August 2021 be granted only insofar as it seeks leave to adduce the further evidence comprising the transcript of the hearing before a magistrate at the Suburb B Magistrates’ Court on 18 March 2021.
3.The appellant mother’s Amended Application in an Appeal filed on 10 August 2021 be otherwise dismissed.
4.The appeals be dismissed.
Note: The form of the order is subject to the entry in the Court’s records.
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 17.02 Family Law Rules 2004 (Cth).
IT IS NOTED that publication of this judgment by this Court under the pseudonym Khatri & Barber (No. 2) has been approved by the Chief Justice pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth).
REASONS FOR JUDGMENT
STRICKLAND, ALDRIDGE & TREE JJ:
INTRODUCTION
By her Notice of Appeal filed on 20 April 2021, Ms Khatri (“the mother”) appeals from interim parenting orders made on 26 March 2021 by a judge of the Family Court of Australia (“the first appeal”). Relevant to this appeal, those orders provided for the parties’ then 10 year old only child to spend overnight time with Mr Barber (“the father”).
Following the orders made on 26 March 2021, the mother filed an application to stay them pending the hearing of the first appeal, which application was dismissed by the primary judge on 13 May 2021. The mother then filed a Notice of Appeal on 28 May 2021 from that order (“the second appeal”) which has been consolidated with the first appeal.
The father opposes both appeals. The Independent Children’s Lawyer in the parenting proceedings did not participate in the appeals.
On 11 August 2021, at the conclusion of the hearing, we dismissed both appeals for reasons to be published in due course. These are those reasons.
BACKGROUND
The parenting proceedings from which both appeals spring were first commenced by the father in 2018.
On 23 April 2020, after a defended interim hearing, a Senior Registrar made orders for the child to live with the mother during school terms and to spend four nights a fortnight and half of school holidays with the father.
On 22 May 2020, the mother filed an application to review the Senior Registrar’s orders. After a hearing on 1 September 2020, the primary judge affirmed the Senior Registrar’s decision, save to the extent that the issue of the time which the child was to spend with the father during school holidays was reserved to the then imminent trial. No appeal was brought from those orders.
The trial commenced before the primary judge on 14 October 2020 but was unable to be concluded in the time then allocated to it. Thereafter it intermittently proceeded, presumably as and when time became available.
Throughout the first two months of the trial the mother contended that the child should not spend any overnight time with the father, and there were a number of attempts by her to vary the interim parenting orders to reflect this. Those applications were all unsuccessful.
On 4 January 2021, interim orders were made by consent providing for the child to spend block time with the father during the 2021 summer school holidays, including overnight time, but otherwise the orders of 23 April 2020 (and 1 September 2020) were to remain in full force and effect. The mother simultaneously gave an undertaking to the Court to comply with all parenting orders made pursuant to the Family Law Act 1975 (Cth) (“the Act”) concerning the child.
On 3 February 2021, being the day before the trial was due to again resume, the mother filed an affidavit in which she set out allegations that the father had physically disciplined the child whilst he was in the father’s care. On 4 February 2021, the mother argued that on the basis of that affidavit, the child’s time with the father should revert to daytime only. The primary judge made an order by consent restraining the father from “physically chastising the child” (noting that the father consented to the order under cover of a denial), but otherwise did not accede to the mother’s submissions.
Although it is unnecessary to detail their history, during the currency of the Family Court parenting proceedings, the parents had also been litigating family violence proceedings in the Magistrates’ Court of Victoria. On 18 March 2021, upon the mother’s application to vary a final intervention order made on 11 February 2020, that Court made the following order:
10.At the time of making this interim intervention order, the Court has also made an order under section 68R of the Family Law Act 1975. The court has ordered that the parenting order made on 23/04/20 is:
VARIED NOT TO ALLOW [THE CHILD] TO SPEND OVERNIGHT TIME WITH HIS FATHER.
(Annexure 4 to the mother’s affidavit filed 23 April 2021) (As per the original)
As found by the primary judge, that application was made in the absence of the father, on an ex parte basis and according to the mother, the hearing lasted between 5 to 10 minutes.
On 23 March 2021, the father first became aware of the Magistrates’ Court order made on 18 March 2021. His legal representatives immediately enquired with the Melbourne family law registry how to list the parenting proceedings urgently before her Honour. As a result of that enquiry, the chambers of the primary judge advised an urgent listing for 26 March 2021. At that hearing, each party was represented by counsel, who made lengthy submissions before her Honour. Following that hearing, her Honour made interim orders for time between the child and father (including overnight time) in the same terms as had been in place prior to the interim intervention order of 18 March 2021. Relevantly, the 26 March 2021 orders provided:
1.That [the child] … spend time and communicate with [the father] as follows:
(a)during school terms, each Wednesday and alternate Friday commencing 19 March 2021 when the child is not spending overnight time with [the father], from the conclusion of school until 6:30pm, with [the father] to collect and deliver the child from school or C Resources Centre;
(b)during school terms, from the conclusion of school Friday until 6:00pm Sunday of each alternate weekend, commencing the 26 March 2021, with changeover to occur at the C Resources Centre on the Sunday;
(c)such further or other times as agreed between the parties in writing (including by text message).
2.That for half of all the school term holidays, the child spend time and communicate with [the father] on a week about basis as agreed between the parents, and in default of agreement, as follows:
(a)for the first half of each school term holiday, from the conclusion of school to 6:00pm a week later; and
(b)for the first week of long summer school holidays, and each alternate week thereafter during these holidays.
3.Pursuant to sec. 68Q of the Family Law Act IT IS NOTED THAT these Orders are inconsistent with a family violence Order made on 18 March 2021 by the Magistrates’ Court of Victoria … AND IT IS DECLARED THAT to the extent of any inconsistency the family violence Order is invalid.
…
As we have indicated, those orders are challenged by the first appeal.
On 23 April 2021, the mother filed an Application in a Case seeking a stay of the orders of 26 March 2021 pending the determination of the first appeal, and further, that the orders made by the magistrate on 18 March 2021 be given full force and effect, and that the trial in relation to the parenting proceedings be adjourned pending the outcome of the first appeal.
On 13 May 2021, the primary judge dismissed the mother’s application, which of course is the subject of the second appeal.
After a total hearing time of some 12 days, the evidence in the trial before the primary judge has recently concluded, with a timetable being ordered for written submissions, after which her Honour’s decision in relation to the final parenting orders is reserved.
APPLICATION TO ADDUCE FURTHER EVIDENCE
On 10 August 2021, the mother filed an Amended Application in an Appeal which sought leave to adduce further evidence in the appeal, and to file an Amended Summary of Argument. The further evidence in part comprises of a supplementary appeal book, which includes additional documents from the court file. The mother also seeks to rely upon two further affidavits sworn by her on 27 July 2021 and 9 August 2021, albeit the latter wholly encompasses the former, which annex transcript for earlier parts of the proceedings and the transcript of the 18 March 2021 hearing in the Magistrates’ Court of Victoria.
On 11 August 2021 we gave leave for the mother to rely upon her Amended Summary of Argument, and the 18 March 2021 Magistrates’ Court transcript. However the remaining documents contained in the supplementary appeal book and the mother’s affidavits, including the previous transcript of the parenting proceedings, were rejected, as they were not relevant to the mother’s appeals.
THE APPEALS GENERALLY
At the outset, we should say that the imminent final judgment arising from the trial before the primary judge renders both appeals futile, as no matter their outcome, they will soon be overtaken by the final orders, which shall supersede both the 26 March 2021 orders and the 13 May 2021 orders. The second appeal is also now otiose and it is unnecessary to consider it given that the stay was pending the determination of the first appeal, and that determination has now taken place. However, we shall nonetheless briefly address the grounds advanced in both appeals, all of which challenge orders made in the exercise of the primary judge’s discretion.
The constraints upon appellate interference with such orders are well-known and of long standing. In House v The King (1936) 55 CLR 499 (“House”) at 504–505 the High Court said:
The manner in which an appeal against an exercise of discretion should be determined is governed by established principles. It is not enough that the judges composing the appellate court consider that, if they had been in the position of the primary judge, they would have taken a different course. It must appear that some error has been made in exercising the discretion. If the judge acts upon a wrong principle, if he allows extraneous or irrelevant matters to guide or affect him, if he mistakes the facts, if he does not take into account some material consideration, then his determination should be reviewed and the appellate court may exercise its own discretion in substitution for his if it has the materials for doing so. It may not appear how the primary judge has reached the result embodied in his order, but, if upon the facts it is unreasonable or plainly unjust, the appellate court may infer that in some way there has been a failure properly to exercise the discretion which the law reposes in the court of first instance. In such a case, although the nature of the error may not be discoverable, the exercise of the discretion is reviewed on the ground that a substantial wrong has in fact occurred.
THE FIRST APPEAL
The mother agitates only two grounds of appeal against the 26 March 2021 orders. The first ground provides:
1.The Trial Judge erred by failing to consider the provisions of section 68R of the family law act and its intersection with the family violence legislation.
(As per original)
Although not explicitly advanced by this ground itself, nonetheless under cover of it the mother contends that the primary judge “ought to have made procedural orders requesting [the father] to make an application he seeks to make arising from the intervention order proceedings and [the mother] should have been afforded procedural fairness to respond” (mother’s Amended Summary of Argument filed 10 August 2021, paragraph 3).
This aspect of the challenge advanced under this ground shall be considered first (Concrete Pty Ltd v Parramatta Design and Developments Pty Ltd (2006) 229 CLR 577).
We have already outlined how the matter was listed before her Honour on 26 March 2021 at [14] of these reasons. In her written submissions to the primary judge filed 26 March 2021, the mother sought that the father be required to make a formal Application in a Case within seven days, and she respond to it within 14 days, including by filing any affidavits in response, and that the application be thereafter heard “not less than 21 days” hence.
To refute the contention that her Honour erred in some way by not doing that which the mother asked, it only needs to be repeated that each party was represented by counsel at the hearing on 26 March, who each made submissions to her Honour as to the orders sought as a result of the intervention order, including the 13 page written submissions provided by the mother’s then counsel. As the primary judge commented at the 26 March hearing, the mother’s counsel clearly had sufficient time to draft these submissions by the day of the hearing. Further, clearly the mother was well aware of the issues at play and the father’s position before the Court, given the recent interim hearing on 4 February 2021. Additionally, the orders sought by the father as at 26 March 2021 were the very same orders for time between the child and father which had been in place since 23 April 2020. The body of his affidavit filed on 24 March 2021 was only one and a half pages long, and the annexures to it were all documents with which the mother must have been familiar. How the mother was precluded from adequately responding to it remains unclear, as is why she needed a further 14 days to do so.
To the extent it is raised by Ground 1, we reject any suggestion that the mother was not afforded procedural fairness at the 26 March 2021 hearing.
As to the balance of this ground, the relevant provisions of the Act in relation to family violence orders to which this ground relates, are as follows:
68P Obligations of court making an order or granting an injunction under this Act that is inconsistent with an existing family violence order
(1)This section applies if:
(a) a court:
(i) makes a parenting order that provides for a child to spend time with a person, or expressly or impliedly requires or authorises a person to spend time with a child;…
…
…and
(b)the order made … is inconsistent with an existing family violence order.
(2)The court must, to the extent to which the order or injunction provides for the child to spend time with a person, or expressly or impliedly requires or authorises a person to spend time with the child:
(a)specify in the order … that it is inconsistent with an existing family violence order; and
…
68Q Relationship of order or injunction made under this Act with existing inconsistent family violence order
(1) To the extent to which:
(a)an order … mentioned in paragraph 68P(1)(a) is made or granted that provides for a child to spend time with a person, or expressly or impliedly requires or authorises a person to spend time with a child; and
(b)the order … is inconsistent with an existing family violence order;
the family violence order is invalid.
…
68R Power of court making a family violence order to revive, vary, discharge or suspend an existing order, injunction or arrangement under this Act
Power
(1)In proceedings to make or vary a family violence order, a court of a State or Territory that has jurisdiction in relation to this Part may revive, vary, discharge or suspend:
(a)a parenting order, to the extent to which it provides for a child to spend time with a person, or expressly or impliedly requires or authorises a person to spend time with the child; or
…
(2) The court may do so:
(a) on its own initiative; or
(b) on application by any person.
Limits on power
(3) The court must not do so unless:
(a)it also makes or varies a family violence order in the proceedings (whether or not by interim order); and
(b)if the court proposes to revive, vary, discharge or suspend an order … mentioned in paragraph (1)(a), (b) or (c)—the court has before it material that was not before the court that made that order…
…
Relevant considerations
(5) In exercising its power under subsection (1), the court must:
(a)have regard to the purposes of this Division (stated in section 68N); and
(b)have regard to whether spending time with both parents is in the best interests of the child concerned; and
(c)if varying, discharging or suspending an order … mentioned in paragraph (1)(a), (b) or (c) that, when made or granted, was inconsistent with an existing family violence order—be satisfied that it is appropriate to do so because a person has been exposed, or is likely to be exposed, to family violence as a result of the operation of that order…
…
68S Application of Act and Rules when exercising section 68R power
(1)The following provisions do not apply to a court exercising the power under section 68R:
(a) …
(b)…
(c) section 60CG (court to consider risk of family violence);
(d) …
(e)any provisions (for example, section 60CA) that would otherwise make the best interests of the child the paramount consideration;
Note: Even though the best interests of the child are not paramount, they must still be taken into account under paragraph 68R(5)(b).
(f)any provisions of this Act or the applicable Rules of Court specified in the regulations.
…
From the above provisions, it can be seen that, to the extent of any inconsistency with orders made under Pt VII of the Act, a family violence order is invalid. Further, subject to the limitations imposed by s 68S, a state or territory court with jurisdiction under Pt VII of the Act (which includes all Local Courts and hence the Magistrates’ Court of Victoria), may, amongst other things, vary, discharge or suspend a Pt VII order if it also makes or varies a family violence order, and has before it evidence that was not before the court which made the Pt VII order (ss 68R(1) and 68R(3)).
In her Amended Summary of Argument, the mother contends in relation to this ground that “there is a question of law (and its interpretation) to be considered by the court of appeal”. However she does not provide any particulars as to the question of law raised, and it is unclear from the mother’s written submissions how her Honour “failed to consider the provisions of s 68R”.
It is plain that her Honour did consider s 68R of the Act. Although her Honour did not provide written reasons for the orders made on 26 March 2021, the transcript of the hearing makes it clear that s 68R and its allied provisions were the subject of detailed submissions from both parties’ counsel, even to the point that the relevant provisions of the Act were annexed to the mother’s counsel’s written submissions. Further, although it is unnecessary to recite extracts of the transcript, her Honour engaged with the mother’s arguments in relation to those provisions and the powers emanating from them.
The mother’s contention that the primary judge did not consider s 68R or “its intersection with the family violence legislation” is patently incorrect.
This ground fails.
The second ground of appeal contends:
2.In the alternative, the Trial Judge placed no weight on the power of the learned magistrate to consider the family violence implications that were before him.
(As per original)
An appeal which challenges the weight given to a relevant consideration faces enormous difficulty, as it is quintessentially a matter for the primary judge (Gronow & Gronow (1979) 144 CLR 513). This is sufficient to reject the challenge raised by this ground.
Even if the ground was intended to contend that the primary judge failed at all to address “the power of the learned magistrate to consider the family violence implications that were before him” that must also be rejected, as the transcript of the proceedings of 26 March 2021 are replete with examples of the primary judge demonstrating that she was well aware of the context in which the magistrate was persuaded to make the 18 March orders. True it is that her Honour was somewhat scathing that orders which she had affirmed as recently as 4 February 2021, during the course of the still part-heard trial, were varied by the Magistrates’ Court after a very brief hearing, but nonetheless it simply cannot be said that she took no cognisance whatsoever of the family violence context against which the intervention order was made.
This ground is without merit and fails.
THE SECOND APPEAL
This appeal extends to only one ground, as follows:
1.That [the primary judge] erred in her decision to not stay her orders on 4 May 2021 based on her interim judgement delivered on 13 May 2021 pending hearing of the Notice of Appeal filed on 20 April 2021.
(As per original)
Unfortunately not only is the nature of the error not specified in the ground of appeal, but it is unable to be clearly discerned either from the mother’s Amended Summary of Argument or her oral submissions advanced at the hearing of the appeal.
True it is that in her Amended Summary of Argument filed 10 August 2021, one slender factual error is raised, as to the primary judge not correctly articulating the extent of time which the orders of 23 April 2020 afforded the child to spend time with the father, but it is unnecessary to consider that further, as even if there were some error, it is clearly immaterial (De Winter v De Winter (1979) 23 ALR 211).
Otherwise, doing the best we can, it appears as though the error which the mother likely asserts is that the primary judge ought to have been persuaded that the risk of harm to the child from overnight time with the father, in the context of a high conflict parenting relationship, justified the conclusion that the child should not be spending such time with the father pending the hearing of the appeal, and in that sense contends that the primary judge wrongly concluded that the child’s best interests lay in there being no stay. If that be the challenge which the mother in fact seeks to advance under this appeal, then it is misconceived. As House makes clear, the challenges which may be legitimately advanced against the exercise of a discretionary judgment are limited, and the fact that the appellate court may not have reached the same conclusion on the same material does not justify its intervention.
Moreover as the primary judge recognised at [27] of her reasons, the relevant principles relating to stay applications were stated in Aldridge & Keaton (Stay Appeal) [2009] FamCAFC 106 at [18] as follows:
[18] The principles to be applied in determining an application for a stay of orders both in the general law and in respect of parenting proceedings are also well known. The authorities stress the discretionary nature of the application which should be determined on its merits. Principles relevant to this matter include the following:
· the onus to establish a proper basis for the stay is on the applicant for the stay. However it is not necessary for the applicant to demonstrate any “special” or “exceptional” circumstances;
· a person who has obtained a judgment is entitled to the benefit of that judgment;
· a person who has obtained a judgment is entitled to presume the judgment is correct;
· the mere filing of an appeal is insufficient to grant a stay;
· the bona fides of the applicant;
· a stay may be granted on terms that are fair to all parties - this may involve a court weighing the balance of convenience and the competing rights of the parties;
· a weighing of the risk that an appeal may be rendered nugatory if a stay is not granted – this will be a substantial factor in determining whether it will be appropriate to grant a stay;
· some preliminary assessment of the strength of the proposed appeal – whether the appellant has an arguable case;
· the desirability of limiting the frequency of any change in a child’s living arrangements;
· the period of time in which the appeal can be heard and whether existing satisfactory arrangements may support the granting of the stay for a short period of time; and
· the best interests of the child the subject of the proceedings are a significant consideration.
(Citations omitted)
Proceeding in an entirely orthodox way, the primary judge addressed each of those discretionary considerations at [31]–[48] and, significantly, concluded at [47] as follows in relation to the child’s best interests:
47Finally, the best interests of the child are served by him continuing to spend time with his father in accordance with the orders of 26 March 2021. The evidence of Ms H, the child’s treating psychologist, was fervently in favour of [the child] spending overnight time with his father and that the time should not be reduced to daytime only, as sought by the mother.
We can discern no error in her Honour’s approach or conclusion, and accordingly this ground of appeal fails.
CONCLUSION
No ground of appeal is established in either appeal and they must therefore be dismissed.
COSTS
Before us both parties self-represented. The father did not point to any costs which he had incurred which might be the subject of a costs order against the mother. Accordingly there will be no order as to costs.
I certify that the preceding forty-seven (47) numbered paragraphs are a true copy of the Reasons for Judgment of the Honourable Justices Strickland, Aldridge & Tree.
Associate:
Dated: 23 August 2021
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