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 2020

FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA
DIVISION 1 APPELLATE JURISDICTION

BETWEEN:
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 southernappeals@fcfcoa.gov.au.

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)…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

Continue reading Dharun & Dharun

Details

AGLC: Dharun & Dharun [2022] FedCFamC1A 226
Case: [2022] FedCFamC1A 226
Decision Date

CaseChat Overview and Summary

In this appeal, Mr Dharun is seeking to challenge the property settlement orders made by a judge of the Federal Circuit and Family Court of Australia (Division 2). The respondent, Ms Dharun, has responded to the appeal. The appeal is being heard in the Family Court of Australia, Division 1 Appellate Jurisdiction. The legal issues before the court include whether the primary judge correctly considered the availability of Indian assets for distribution, whether there was pre-planning of the separation by the respondent, whether the primary judge failed to consider the appellant's higher financial contribution, whether the primary judge approached the matter on a global basis instead of an asset-by-asset basis, and whether the appellant has a lawful interest in and a right to sell the asset referred to in Order 3.

The court found that the appellant needed to obtain the part of the digital transcript that contains the parties' final submissions from the Court's authorised provider. This is to assist the court in determining the appeal, especially given that both parties are presenting their own cases in the appeal. The court considered the appellant's financial situation and the importance of the oral submissions made to the primary judge in deciding the appeal. The court varied the orders made by the appeal judicial registrar to require the appellant to obtain only the part of the digital transcript containing the parties' final submissions. The court also extended the time for filing that part of the digital transcript to 15 January 2022.

No further orders were made in relation to the preparation or the receipt of further evidence on the appeal. The court considered that the appellant's grounds of appeal could be determined with the assistance of the submissions made to the primary judge, and that the appellant should, at the least, obtain that part of the transcript that contains the oral submissions made to the primary judge. The court's decision was based on a balance of the appellant's financial situation and the importance of the oral submissions made to the primary judge in deciding the appeal.

Orders