Khatri & Barber [2021] FamCAFC 121 (8 July 2021)

Last Updated: 30 July 2021

FAMILY COURT OF AUSTRALIA

Khatri & Barber [2021] FamCAFC 121

Appeal from:	FCoA orders dated 26 March 2021
Appeal number(s):	SOA 20 of 2021
File number(s):	MLC 9649 of 2018
Judgment of:	STRICKLAND J
Date of judgment:	8 July 2021
Catchwords:	FAMILY LAW – APPLICATION IN AN APPEAL – Where the appellant seeks that orders be set aside despite there already being an appeal from those orders on foot – Where the appellant seeks that orders made by a State Magistrate be given full force and effect – Where the appellant seeks an adjournment of a part heard trial – Where the appellant’s application is incompetent – Application dismissed.
Division:	Appeal Division
Number of paragraphs:	9
Date of hearing:	8 July 2021
Place:	Melbourne
The Applicant:	In Person
The Respondent:	No appearance
The Independent Children's Lawyer:	No appearance

ORDERS

		SOA 20 of 2021 MLC 9649 of 2018
APPEAL DIVISION OF THE FAMILY COURT OF AUSTRALIA
BETWEEN:	MS KHATRI Applicant
AND:	MR BARBER Respondent
	INDEPENDENT CHILDREN'S LAWYER

ORDER MADE BY:	STRICKLAND J
DATE OF ORDER:	8 JULY 2021

THE COURT ORDERS THAT:

1. The Application in an Appeal filed on 16 June 2021 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 has been approved by the Chief Justice pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth).

EX TEMPORE REASONS FOR JUDGMENT

1. Before the court today is an Application in an Appeal filed by the appellant mother on 16 June 2021. That application is brought in relation to an appeal filed by the appellant mother on 20 April 2021, appealing from orders made by Williams J on 26 March 2021. I note that appeal will be listed to be heard in the week commencing Monday, 9 August 2021.
2. I note also that separate to that appeal the appellant mother has filed another appeal, and I need to explain that. Following the orders of her Honour on 26 March 2021, the appellant mother filed an application seeking a stay of those orders, pending the hearing of the appeal from those orders. On 13 May 2021 her Honour dismissed that application. The appellant mother has filed a Notice of Appeal from that order, namely, the order refusing the stay and that appeal has been consolidated with the appeal that I am now concerned with. Both appeals will be heard in the week commencing 9 August 2021.
3. Returning to the application that is before the Court today, there are four orders sought in that application. The first is that the application be listed before a single judge of the Full Court of Australia. Now, I pause to note that that is, in fact, what is happening. I am the senior appeal judge of the Appeal Division of the Family Court of Australia.
4. The second order sought is that the orders of Williams J made on 26 March 2021 be set aside pending the consolidated appeal being heard and determined in this matter. However, I have indicated to the appellant mother that it is not open for her to seek that order and, indeed, it is not an order that this court could or would make on an application such as this. The orders are the subject of an appeal which is about to be heard.
5. To repeat, the appellant mother also sought a stay of those orders, but that application was dismissed, and there is an appeal from that order also listed in the week of 9 August 2021. That is the process and the procedure that is open to the appellant mother, and to repeat, it is not open to her to just bring an Application in an Appeal seeking the orders the subject of the appeal be set aside despite her appeal being on foot, and having had her application for a stay refused and there being an appeal on foot against that.
6. The third order sought is that the orders made by the learned Magistrate on 18 March 2021 be given full force and effect. Now, that relates to family violence orders made in the State Magistrates Court in Victoria and which were rendered invalid by the orders under appeal. Again, it is not open to the appellant to seek that order, and, it is not open to this Court to make that order.
7. Indeed, what the appellant mother is seeking in the appeal from the orders of 26 March 2021 is, in effect, to be able to revert to those orders of the Magistrate of 18 March 2021. However, that will be dealt with in that appeal, and it cannot be dealt with in the way that she is now attempting to do.
8. I come to the fourth order sought. That is, that the trial, which is part heard, be adjourned pending the outcome of the “interim appeal”. Now, in relation to the trial, I understand that has been ongoing for several days over many months. It is due to resume, as I understand it, later this month, namely, July 2021 when three days are set aside to complete that trial. However, the fact is that it is not for this court to adjourn a trial; that is a matter for the trial judge.
9. So, again, that order is also an order that cannot be made by this court, and would not be made by this court. Thus, in summary, apart from order 1, which is the listing of the application today, none of orders 2, 3 and 4 can be made. This is not a competent application and should never have been filed in this Court.

I certify that the preceding nine (9) numbered paragraphs are a true copy of the Reasons for Judgment of the Honourable Justice Strickland.

Associate:

Dated: 20 July 2021