Dajani & Dajani

Case [2025] FedCFamC1A 28

FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA

(DIVISION 1) APPELLATE JURISDICTION

Dajani & Dajani [2025] FedCFamC1A 28

Appeal from: Dajani & Dajani [2024] FedCFamC1F 605
Appeal number: NAA 263 of 2024
File number: SYC 3672 of 2020
Judgment of: MCCLELLAND, ALDRIDGE & JARRETT JJ
Date of judgment: 26 February 2025
Catchwords: FAMILY LAW – APPEAL – PROPERTY – Where the appellant was convicted of multiple offences of sexual assault against the daughter prior to the final hearing – Where the primary judge admitted the sentencing remarks from the District Court into evidence – Discussion of s 91 of the Evidence Act 1995 (Cth) – Where the reasons do not show the primary judge relied on the sentencing remarks to provide facts from which inferences could be drawn – Adequacy of reasons – Discussion of Kennon v Kennon (1997) FLC 92-757 – Where the primary judge found there was an inference that the respondent’s contributions were more arduous – Where the reasoning is clearly apparent – Appeal dismissed – Appellant to pay the respondent’s costs in a fixed sum.
Legislation:

Evidence Act 1995 (Cth) ss 91, 135

Occupational Health and Safety Act 2000 (NSW) s 26

Cases cited:

Ainsworth v Burden [2005] NSWCA 174

Bennett and Bennett (1991) FLC 92-191; [1990] FamCA 148

Benson & Drury (2020) FLC 93–998; [2020] FamCAFC 303

Chevalley v Industrial Court of New South Wales (2011) 82 NSWLR 634; [2011] NSWCA 357

Kennon v Kennon (1997) FLC 92-757; [1997] FamCA 27

Maine v Maine (2016) 56 Fam LR 500; [2016] FamCAFC 270

Martell v Martell (2023) 66 Fam LR 650; [2023] FedCFamC1A 71

Osborne v Butler (2024) 73 VR 386; [2024] VSCA 6

Pollard v RRR Corporation Pty Ltd [2009] NSWCA 110

Prothonotary of the Supreme Court of New South Wales v Sukkar [2007] NSWCA 341

Number of paragraphs: 64
Date of hearing: 4 February 2025
Place: Sydney
Counsel for the Appellant: Mr Chhabra
Solicitor for the Appellant: Russell Kennedy
Counsel for the Respondent: Ms Kennedy
Solicitor for the Respondent: Santone Lawyers

ORDERS

NAA 263 of 2024
SYC 3672 of 2020

FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA
DIVISION 1 APPELLATE JURISDICTION
BETWEEN:

MR DAJANI

Appellant
AND:

MS DAJANI

Respondent

ORDER MADE BY:

MCCLELLAND DCJ, ALDRIDGE & JARRETT JJ

DATE OF ORDER:

26 FEBRUARY 2025

THE COURT ORDERS THAT:

1.The appeal is dismissed.

2.The appellant pay the respondent’s costs fixed in the sum of $10,350.29 within 28 days.

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…

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AGLC
Dajani & Dajani [2025] FedCFamC1A 28
Case
[2025] FedCFamC1A 28
Decision Date

CaseChat Overview and Summary

In the Federal Circuit and Family Court of Australia, the case between Mr Dajani and Ms Dajani involved an appeal concerning the distribution of property between the parties. The primary judge had admitted the sentencing remarks from the District Court into evidence, which had detailed the appellant’s convictions of multiple offences of sexual assault against the daughter. This decision was challenged by the appellant on the basis that the evidence was inadmissible under section 91 of the Evidence Act 1995 (Cth), which excludes evidence of judgments and convictions from being used to prove the existence of a fact that was in issue in the proceedings. The court was required to determine whether the primary judge appropriately relied on the sentencing remarks to draw inferences about the respondent’s contributions.

The court examined whether the primary judge had correctly understood and applied section 91 of the Evidence Act. The court noted that while the sentencing remarks were not admissible to prove the facts of the convictions, they could be considered for the purpose of drawing inferences about the impact of the appellant’s conduct on the respondent’s contributions. The court found that the primary judge did not rely on the sentencing remarks to establish the facts of the appellant’s offending, but rather to provide context for how the respondent’s contributions were rendered more arduous due to the appellant’s conduct. The reasoning was deemed clearly apparent, and the appeal was dismissed. The court also ordered the appellant to pay the respondent’s costs in a fixed sum of $10,350.29 within 28 days.

Orders

Orders of the court

NAA 263 of 2024

SYC 3672 of 2020

FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA

DIVISION 1 APPELLATE JURISDICTION

BETWEEN:

MR DAJANI

Appellant

AND:

MS DAJANI

Respondent

ORDER MADE BY:

MCCLELLAND DCJ, ALDRIDGE & JARRETT JJ

DATE OF ORDER:

26 FEBRUARY 2025

THE COURT ORDERS THAT:

1. The appeal is dismissed.

2. The appellant pay the respondent’s costs fixed in the sum of $10,350.29 within 28 days.

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

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Evidence

Evidence Before The Court

Section 91 states:91 Exclusion of evidence of judgments and convictions (1)Evidence of the decision, or of a finding of fact, in an Australian or overseas proceeding is not admissible to prove the existence of a fact that was in issue in that proceeding.(2)Evidence that, under this Part, is not admissible to prove the existence of a fact may not be used to prove that fact even if it is relevant for another purpose. The section extends to sentencing remarks (Prothonotary of the Supreme Court of New South Wales v Sukkar [2007] NSWCA 341 (“Sukkar”) at [9]). The remarks, therefore, were not admissible to prove a fact that was in issue in the proceedings before the primary judge. The primary judge admitted the remarks into evidence accepting the respondent’s submissions to the following effect:·The remarks add to the bare evidence of the convictions (at [20]);·The remarks explain what the daughter suffered at the hands of the appellant, her challenging behavioural issues and the respondent’s efforts to manage them and parent the daughter (at [21]);·The evidence goes to the issues of how the respondent’s contributions were rendered more arduous because of the appellant’s violent conduct against the daughter (at [22]). His Honour concluded:25The victim of the husband’s offending, [the daughter], was not called to give evidence in the present case. The wife could not give evidence about the details of the husband’s sexual assaults on [the daughter] as her only knowledge was derived from what she saw, heard, and learned during the husband’s criminal trial and sentencing. Whilst the fact of the convictions is unarguable, the only record of the details of the facts of perpetration are contained in the Sentence Remarks. 26The Court observes the artificiality and incongruity of having before it clear evidence about the husband’s convictions and sentencing, but not the details of the conduct that resulted in those convictions and sentencing. There is a sense in which the Court could almost be misled by the incomplete evidence of merely the convictions and sentencing. 27Senior counsel for the wife contends, in substance, that the purpose of the tender is not to prove the existence of the facts recited in the Sentence Remarks. Rather, the tender is to provide context to the impact on the wife’s contribution of the husband’s conduct towards [the daughter]. 28Moreover, the tender would enable the Court to draw inferences about the impact on the wife of the husband’s conduct during the trial of pleading, and maintaining a plea of, not guilty. The Court notes, however, that if an inference is available in this regard, it can be drawn from the conceded, and self-evident, fact of the not guilty plea. However, his Honour also said:31Unless stated otherwise above, the Court accepts the submissions made in the wife’s case about the Sentence Remarks. Consistent with the Full Court’s decision in Cirillo, the document is not being tendered for the purpose of proving the facts referred to and will not be used as such by the Court.…35…The purpose of the tender of the Sentence Remarks is not to re-establish the husband’s guilt, but merely to provide facts from which inferences may be drawn about how the wife’s contributions were rendered more arduous.

Decision

Reasons for decision

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Ratio Decidendi

Legal Principle Established

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