Dharun & Dharun
[2022] FedCFamC1A 226
Federal Circuit and Family Court of Australia
(DIVISION 1) APPELLATE JURISDICTION
Dharun & Dharun [2022] FedCFamC1A 226
Appeal from: Dharun & Dharun [2022] FedCFamC2F 1105 Appeal number(s): NAA 207 of 2022 File number(s): MLC 8273 of 2020 Judgment of: ALDRIDGE J Date of judgment: 7 December 2022 Catchwords: FAMILY LAW – APPEAL – APPLICATION IN AN APPEAL – Where the appellant seeks to be relieved of the obligation to file a consolidated transcript of the hearing – Consideration of grounds of appeal – Where the submissions made to the primary judge would be of assistance to the Court in determining the appeal – Orders made for the appellant to obtain parts of the transcript. Legislation: Federal Circuit and Family Court of Australia (Family Law) Rules 2021 (Cth) rr 13.19, 13.39 Number of paragraphs: 17 Date of hearing: 7 December 2022 Place: Sydney (via video link) The Applicant: Self-represented litigant The Respondent: Self-represented litigant ORDERS
NAA 207 of 2022
MLC 8273 of 2020FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA
DIVISION 1 APPELLATE JURISDICTIONBETWEEN: MR DHARUN
Applicant
AND: MS DHARUN
Respondent
order made by:
ALDRIDGE J
DATE OF ORDER:
7 DECEMBER 2022
THE COURT ORDERS THAT:
1.Order 2 made by the appeal judicial registrar on 18 October 2022 is varied to read:
2. The appellant prepare a digital appeal book and obtain that part of the digital transcript that contains the parties’ final submissions from the Court’s authorised provider with the attached settled appeal index.
2.Order 4(b) made by the appeal judicial registrar on 18 October 2022 is varied to read:
4.…
b. Email that part of the digital transcript referred to in Order 2 for filing to the appeal registry using the email address [email protected].
3.Order 5(b) made by the appeal judicial registrar on 18 October 2022 is varied to read:
5.…
b.Email that part of the digital transcript referred to in Order 2 to the respondent by way of service.
4.The time to file that part of the digital transcript that contains the parties’ final submissions is extended to up to an including 15 January 2022.
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).
IT IS NOTED that publication of this judgment by this Court under the pseudonym Dharun & Dharun has been approved pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth).
EX TEMPORE REASONS FOR JUDGMENT
ALDRIDGE J:
By an Application in an Appeal filed 11 November 2022, the appellant Mr Dharun seeks to be relieved of the obligation provided for in r 13.19 of the Federal Circuit and Family Court of Australia (Family Law) Rules 2021 (Cth) (“the Rules”) and the procedural orders made by the appeal judicial registrar on 18 October 2022 to file a consolidated transcript of the hearing.
The appellant has appealed from property settlement orders made by a judge of the Federal Circuit and Family Court of Australia (Division 2) on 30 August 2022. Her Honour’s orders were, firstly, that an amount of money, that the sum of $42,613 being held in trust, forthwith be paid to the respondent, Ms Dharun, and that secondly, within 60 days the appellant pay to her a further sum of $72,144. Order 3 provided that if that payment was not made by that date, the appellant would cause his interest in a property in India to be sold and that the proceeds be distributed, firstly, to cover the costs of sale and, secondly, to pay to the respondent the amount remaining owed under Order 2. Her Honour also made some superannuation splitting orders.
As I have endeavoured to explain to the appellant this morning with apparent lack of success, if the transcript is necessary for him to be able to establish error on the part of the primary judge and he does not have that transcript, it will, it follows that that ground of appeal almost certainly will not succeed. I have also endeavoured to explain to the appellant, again without any apparent success, is that the appeal is not an opportunity for simply him to re-try the case. His obligation as an appellant is to identify error on the part of the primary judge.
It is useful therefore to consider the grounds of appeal being relied on by the appellant.
First, he asserts that the primary judge wrongly considered Indian assets as available for distribution between the parties or, alternatively, that those assets were consumed during the marriage. This is contrary to findings of fact made by her Honour when, after considering the disputed evidence of the appellant and the respondent, found that the appellant did, in fact, own property in India in his own name. If the cross-examination of the parties is relevant to his grounds of appeal, he will be in some difficulty if he does not have the transcript.
The second ground is that the primary judge failed to consider the respondent pre-planned the separation and wanted to get a maximum financial advantage from the marriage. I have difficulty seeing how that is a valid ground of appeal or that it is indeed a relevant consideration. However, I consider that it would be important to look at what submissions were actually placed before the primary judge on that issue.
The next ground of appeal is that the primary judge did not consider the significantly higher financial contribution of the appellant. That is a matter that probably could be dealt with without the transcript, particularly in the evidence.
The next ground is that the primary judge approached the matter in a global approach as opposed to an asset by asset basis. It would be helpful for a judge hearing that appeal to know what submissions were placed to her Honour on that ground. Generally speaking, unless something is so obvious as to go without saying, a party must make a submission to the primary judge before they can assert that the primary judge erred by not accepting it. Again, the transcript would be of, at least, the submissions would be very helpful.
The last ground is that the appellant has no lawful interest in and a lawful right to sell the asset referred to in Order 3. That is contrary to her Honour’s findings. However, importantly, her Honour referred to this order at [51] of her Honour’s reasons where the following appears:
51.[The respondent] proposed, by way of default provision, the sale of the Indian property in the event [the appellant] does not make the ordered payment to her. [The appellant] made no submissions as to the appropriateness of such a default provision. I consider it to be just and equitable in the circumstances.
Although, in submissions to me, the appellant accepted that he did not make any submissions on this point to the primary judge. He nonetheless submitted that the primary judge erred. This will be demonstrated, he says, by the further evidence that he plans to call on the appeal.
There have been no orders made in relation to the preparation or the receipt of further evidence on the appeal and no orders were made by the appeal judicial registrar. Presumably because the issue was not raised at that time.
I am informed by the appellant that he has complied with the directions made by the appeal judicial registrar and has filed a Summary of Argument on or before 1 December 2022. Further evidence is governed by r 13.39 of the Rules which requires that an application for such evidence to be received on the appeal must be filed at least 14 days before the commencement of the sittings in which the appeal is listed for hearing. As I understand it, the appeal has not yet been listed for hearing. I have not looked at the appellant’s Summary of Argument to see whether he refers to that proposed new evidence.
In any event, I am of the view that, given the grounds of appeal, the submissions at least that were made to the primary judge would be of particular assistance to the Court in determining the appeal. That is particularly so given that both the appellant and the respondent are presenting their own case in the appeal and I consider that the Court would be greatly assisted by being able to see for itself what form the submissions took before the primary judge.
I accept that the appellant may have some difficulty in raising the funds to pay for an entire transcript. The primary judge referred to him as working part-time as a transport worker earning some $600 per week. I accept, therefore, that he may have some difficulty, as I said, in paying for the entire transcript. I accept, too, that he may have some difficulty in obtaining just part of the transcript, namely, the oral submissions that were made to the primary judge. It appears from the appeal book that there were no written submissions.
Balancing these matters against each other, I am of the view that the appellant should, at the least, obtain that part of the transcript that contains the oral submissions made to the primary judge.
Therefore, I vary the following orders made by the appeal judicial registrar on 18 October 2022 so that:
·Order 2 reads “obtain that part of the digital transcript that contains the parties’ final submissions from the Court’s authorised provider”;
·In Order (4)(b) replace the word “consolidated” with “that part of the digital transcript referred to in Order 2”;
·In Order (5)(b) replace the word “consolidated” with “that part of the digital transcript referred to in Order 2”.
I extend the time to file that part of the digital transcript up to and including 15 January 2022.
I certify that the preceding seventeen (17) numbered paragraphs are a true copy of the ex tempore Reasons for Judgment of the Honourable Justice Aldridge. Associate:
Dated: 22 December 2022
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