Khatri & Khatri

Case [2024] FedCFamC1A 152

FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA

(DIVISION 1) APPELLATE JURISDICTION

Khatri & Khatri [2024] FedCFamC1A 152

Appeal from:  Khatri and Khatri [2024] FCWA 35
Appeal number: NAA 68 of 2024
File number: PTW 7194 of 2013
Judgment of: MCCLELLAND DCJ, ALDRIDGE & BRASCH JJ
Date of judgment: 6 September 2024
Catchwords:

FAMILY LAW – APPEAL – APPLICATION IN AN APPEAL – Adduce further evidence – Where the appellant seeks to adduce photographs of the respondent and immigration application documents to discredit the respondent – Application of CDJ v VAJ (1998) 197 CLR 172 – Where it is not established that if the evidence was before the primary judge the outcome is likely to have been different – Application dismissed.

FAMILY LAW – APPEAL – PARENTING – Appeal from final parenting orders – Where the appellant pleads two grounds of appeal with numerous overlapping sub-grounds which did not elucidate the appellant’s complaint – Bias – Weight challenges – Factual errors – Failure to consider relevant material – Where the appellant disputes the primary judge’s finding that he engaged in coercive and controlling family violence – Respondent and Independent Children’s Lawyer oppose the appeal – Grounds of appeal are incompetent and misconceived – Decision of the primary judge not unreasonable or unjust – No error of fact or law established – Appeal dismissed – No order as to costs.
Legislation:

Family Law Act 1975 (Cth) ss 4AB, 60CC, 69ZN

Federal Circuit and Family Court of Australia Act 2021 (Cth) ss 35, 36

United Nations Convention on the Rights of the Child art 9  
Cases cited:

Allesch v Maunz (2000) 203 CLR 172; [2000] HCA 40

Balenzuela v De Gail (1959) 101 CLR 226; [1959] HCA 1

Bartram & Marsden [2023] FedCFamC1A 207

CDJ v VAJ (1998) 197 CLR 172; [1998] HCA 67

Charisteas v Charisteas (2021) 273 CLR 289; [2021] HCA 29

Concrete Pty Ltd v Parramatta Design & Developments Pty Ltd (2006) 229 CLR 577; [2006] HCA 55

Conomy v Maden [2016] WASCA 30

De Winter and De Winter (1979) FLC 90-605

DL v The Queen (2018) 266 CLR 1; [2018] HCA 26

Ebner v Official Trustee in Bankruptcy (2000) 205 CLR 337; [2000] HCA 63

Edwards v Noble (1971) 125 CLR 296; [1971] HCA 54

F v L (Child Arrangements Order: Relocation) [2018] 4 WLR 141; [2017] EWCA Civ 2121

Feldman v Nationwide News Pty Ltd (2020) 103 NSWLR 307; [2020] NSWCA 260

FJ & PN Curran Pty Ltd v Almond Investors Land Pty Ltd [2019] VSCA 236

Hall and Hall (1979) FLC 90-713; [1979] FamCA 73

House v the King (1936) 55 CLR 499; [1936] HCA 40

Housing Commission (NSW) v Tatmar Pastoral Co Pty Ltd and Penrith Pastoral Co Pty Ltd [1983] 3 NSWLR 378

Lee v Lee (2019) 266 CLR 129; [2019] HCA 28

Macedonian Orthodox Community Church St Petka Inc v His Eminence Petar The Diocesan Bishop of Macedonian Orthodox Diocese of Australia…

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AGLC
Khatri & Khatri [2024] FedCFamC1A 152
Case
[2024] FedCFamC1A 152
Decision Date

CaseChat Overview and Summary

The appeal in this matter was brought by Mr Khatri against the final parenting orders made by the primary judge. The appeal was dismissed by the Court of Appeal on the basis that the grounds of appeal were both incompetent and misconceived. The appeal sought to challenge the primary judge’s findings regarding the respondent’s allegations of coercive and controlling conduct, including physical violence and stalking, which continued after the parties’ separation. The Court of Appeal found that the grounds of appeal did not adequately elucidate Mr Khatri’s complaints against the primary judge’s decision and were verbose and discursive. The respondent and the Independent Children’s Lawyer opposed the appeal, arguing that the decision of the primary judge was not unreasonable or unjust, and no error of fact or law was established.

The Court of Appeal considered the principles established in CDJ v VAJ regarding the admission of further evidence on appeal. The Court noted that ordinarily, further evidence should not be admitted if it was available or could reasonably have been obtained at the time of the hearing. Mr Khatri sought to adduce photographs of the respondent and immigration application documents to discredit the respondent’s allegations of assault and to argue that he had taken steps to maintain a relationship with the child. The Court found that the evidence was unlikely to have produced a different result and dismissed the application to adduce further evidence.

In dismissing the appeal, the Court of Appeal held that the grounds of appeal were incompetent and misconceived. The Court found that the primary judge’s decision was not unreasonable or unjust and that no error of fact or law was established. The Court of Appeal concluded that the decision of the primary judge should stand, and the appeal was dismissed with no order as to costs.

Orders

Orders of the court

NAA 68 of 2024

PTW 7194 of 2013

FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA

DIVISION 1 APPELLATE JURISDICTION

BETWEEN:

MR KHATRI

Appellant

AND:

MS KHATRI

Respondent

ORDER MADE BY:

MCCLELLAND DCJ, ALDRIDGE & BRASCH JJ

DATE OF ORDER:

6 SEPTEMBER 2024

THE COURT ORDERS THAT:

1. Appeal NAA 68 of 2024 is 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 10.14(b) Federal Circuit and Family Court of Australia (Family Law) Rules 2021 (Cth)), or to record a variation to the order pursuant to r 10.13 Federal Circuit and Family Court of Australia (Family Law) Rules 2021 (Cth).

Part XIVB of the Family Law Act 1975 (Cth) makes it an offence, except in very limited circumstances, to publish an account of proceedings that identify persons, associated persons, or witnesses involved in family law proceedings.

Background

Background to the litigation

For reasons which follow, we have determined that the appeal is without merit and must be dismissed. BACKGROUND The background of this matter has been extensively canvassed by the primary judge and we will not here repeat his Honour’s detailed account, save to note the following. The appellant was born in 1980 and is currently 44 years old. The respondent was born in 1985 and is currently 39 years old. The parties commenced a relationship in mid 2006. The appellant was divorced and had a daughter, named Ms B, from his first marriage. The parties married in Country C in 2007, migrated to Australia in 2010, and in 2013, the child subject of these proceedings was born. The first major separation occurred in mid 2013, shortly after the child was born. In 2016, the parties divorced. In 2017, the parties remarried. In 2021, the parties separated on a final basis. Upon separation, the respondent removed the child from the family home and moved to South Australia where she has since remained. The child last spent time with the appellant in February 2021. The orders made by the primary judge were based upon his findings that, during the course of the parties’ relationship, the respondent had been subject to a pattern of coercive and controlling conduct which included pressure to terminate pregnancies and actual physical violence. The primary judge further found that the pattern of controlling and coercive conduct continued after the separation and included behaviour that the respondent characterised as stalking and the making of serious threats to the respondent and members of her family. The primary judge found that the child had been directly and indirectly impacted by exposure to family violence and, in circumstances where the respondent was in fear of the appellant, that the child would be vicariously impacted by orders requiring the respondent to facilitate the child spending time with the appellant.APPLICATION TO ADDUCE FURTHER EVIDENCE By way of an Amended Application in an Appeal filed on 30 April 2024, the appellant sought to adduce fresh evidence in the appeal, being: ·Six photographs of the respondent taken prior to 2009 and after 2009; and ·Immigration application documents. The appellant abandoned an application to adduce evidence from two retail outlets located in Country C in circumstances where the appellant had not obtained affidavits from those retail outlets. Section 35 of the Federal Circuit and Family Court of Australia Act 2021 (Cth) empowers the Court to admit further evidence on appeal. The principles for when the Court will exercise its discretion to admit fresh evidence in an appeal are well-known, having been set out by the High Court of Australia in CDJ v VAJ (1998) 197 CLR 172 (“CDJ v VAJ”). For the purpose of considering the appellant’s Amended Application in an Appeal, the following two principles are relevant: first, ordinarily further evidence should not be admitted on appeal if it was available, or could reasonably have been obtained at the time of the hearing (CDJ v VAJ at [55]), and second, further evidence will not be admitted “merely because it is useful” (CDJ v VAJ at [113], emphasis in original). The relevant test is whether, if the further evidence had been tendered before the primary judge, it “was likely to have produced a different result” (CDJ v VAJ at [149]).

Evidence

Evidence Before The Court

The orders made by the primary judge were based upon his findings that, during the course of the parties’ relationship, the respondent had been subject to a pattern of coercive and controlling conduct which included pressure to terminate pregnancies and actual physical violence. The primary judge further found that the pattern of controlling and coercive conduct continued after the separation and included behaviour that the respondent characterised as stalking and the making of serious threats to the respondent and members of her family. The primary judge found that the child had been directly and indirectly impacted by exposure to family violence and, in circumstances where the respondent was in fear of the appellant, that the child would be vicariously impacted by orders requiring the respondent to facilitate the child spending time with the appellant.APPLICATION TO ADDUCE FURTHER EVIDENCE By way of an Amended Application in an Appeal filed on 30 April 2024, the appellant sought to adduce fresh evidence in the appeal, being: ·Six photographs of the respondent taken prior to 2009 and after 2009; and ·Immigration application documents. The appellant abandoned an application to adduce evidence from two retail outlets located in Country C in circumstances where the appellant had not obtained affidavits from those retail outlets. Section 35 of the Federal Circuit and Family Court of Australia Act 2021 (Cth) empowers the Court to admit further evidence on appeal. The principles for when the Court will exercise its discretion to admit fresh evidence in an appeal are well-known, having been set out by the High Court of Australia in CDJ v VAJ (1998) 197 CLR 172 (“CDJ v VAJ”). For the purpose of considering the appellant’s Amended Application in an Appeal, the following two principles are relevant: first, ordinarily further evidence should not be admitted on appeal if it was available, or could reasonably have been obtained at the time of the hearing (CDJ v VAJ at [55]), and second, further evidence will not be admitted “merely because it is useful” (CDJ v VAJ at [113], emphasis in original). The relevant test is whether, if the further evidence had been tendered before the primary judge, it “was likely to have produced a different result” (CDJ v VAJ at [149]). Leaving aside the fact that, in our view, the appellant has provided an inadequate explanation as to why, with reasonable diligence, he could not have obtained the evidence prior to the trial, we have rejected the appellant’s Amended Application in an Appeal because we are not satisfied that the evidence would have had any bearing on the outcome of the trial. In that respect, the appellant sought to admit the photographs of the respondent’s face to discredit the respondent’s assertion that she had been assaulted by the appellant in 2009. According to the evidence of the respondent, the appellant assaulted her, leaving a “permanent raised bump” on her face (respondent’s affidavit filed 13 April 2022, paragraph 34).

Decision

Reasons for decision

Full text does not contain this section.

Ratio Decidendi

Legal Principle Established

The appellant’s Amended Notice of Appeal filed on 22 April 2024 reduced his grounds of appeal to Ground 2 and Ground 4. Those grounds were, however, broken down into a number of sub-grounds which were extremely verbose and discursive. The Summary of Argument filed 20 May 2024 was almost identical to the Amended Notice of Appeal and did not assist in clarifying the appellant’s complaints against the orders made by the primary judge. Subject to those qualifications, the grounds of appeal can be broadly summarised as follows:·Ground 1 was abandoned.·Ground 2, which is the first ground that is pressed, is a general introductory paragraph to following sub-grounds of appeal that contend that the primary judge “[m]issed consideration of facts and evidence” and was biased in the weight he gave to evidence.·Ground 2(1) contends that in [28]–[34] of the judgment, “there is no single untruth statement”. Thereafter, the appellant makes various factual assertions in five subparagraphs listed (a) through to (e). These will be addressed subsequently.·Ground 2(2) refers to [88] of the judgment but, in substance, appears to be an attack on the primary judge limiting the cross-examination of the respondent, and the primary judge failing to have regard to, what the appellant says, are prior inconsistent statements made by the respondent.·Ground 2(3) focuses upon [105] of the judgment and, in substance, appears to contend that the primary judge was in error in finding that the appellant had engaged in coercive conduct in pressuring the respondent to medically terminate a number of pregnancies.·Ground 2(4) focuses upon [273] of the judgment and, in substance, appears to contend that, in the absence of expert evidence, the primary judge was in error in finding that the respondent was in fear of the appellant. ·Ground 2(5) focuses upon [289] of the judgment and contends that the primary judge failed to have regard to a relevant consideration, namely that the appellant has “taken every possible step in compliance with his legal counsel to maintain a relationship with [the] child”.·Ground 2(6) focuses upon [290] of the judgment and, in substance, appears to contend that the primary judge was in error in failing to consider or make mention of evidence that the respondent engaged in acts of violence against him.·Ground 2(7) focuses upon [291] of the judgment and, in substance, appears to contend that the primary judge failed to have regard to art 9 of the United Nations Convention on the Rights of the Child and, in particular, the right of the child to have an ongoing relationship with the appellant.·Ground 2(8) focuses upon [310] of the judgment and, in substance, appears to be a contention that the primary judge failed to give sufficient weight to the evidence of the Single Expert as to the “strength of the bond between the child and [the appellant]”.·Ground 2(9), in substance, appears to contend that that the primary judge was in error in finding that the appellant was financially controlling the respondent.·Ground 2(10), in substance, appears to be a contention that the primary judge failed to take into consideration that the respondent “has been abusive towards the [appellant’s] daughter from the previous marriage”.·Ground 2(11) contends that the primary judge failed to give sufficient weight to the delay in the respondent reporting acts of violence that she alleged the appellant engaged in during the first period of the parties’ cohabitation. The appellant suggests that the respondent had ample opportunity to report these allegations from mid 2013 to early 2017 during their first period of separation.·Ground 2(12) contends that the primary judge erred in failing to have regard to the fact “that the ‘verbal threats’ were from both sides”.·Ground 3 was abandoned.·Ground 4 contends that the primary judge “[m]isconstrued” dialogues and proverbs and thereafter sets out two sub-grounds.·Ground 4(1) contends that, in assessing the nature and extent of the conduct of the appellant, the primary judge failed to have regard to “historical and cultural influences”.·Ground 4(2) focuses upon [235] of the judgment and, in substance, appears to contend that the primary judge failed to have regard to “various personality types”. This was in the context of the primary judge finding that the appellant made a serious threat to the respondent in posting on his WhatsApp message portal the message “[d]on’t play with fire if you’re not willing to burn” in the days immediately following the violent death of the respondent’s sister at the hands of her brother-in-law.CONSIDERATION Ground 2