FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA
(DIVISION 1) APPELLATE JURISDICTION
Dharun & Dharun (No 2) [2023] FedCFamC1A 41
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: 31 March 2023 Catchwords: FAMILY LAW – APPEAL – PROPERTY – Whether Indian assets should have been assets available for distribution between the parties – Contributions – Whether the adjustment of property interests was just and equitable – No error established – Appeal dismissed. Legislation: Family Law Act 1975 (Cth) ss 4, 90XT Cases cited: Australian Coal & Shale Employees’ Federation v The Commonwealth (1953) 94 CLR 621; [1953] HCA 25
Bonnici & Bonnici (1991) FLC 92-272
Calvin & McTier (2017) FLC 93-785; [2017] FamCAFC 125
House v The King (1936) 55 CLR 499; [1936] HCA 40
Jabour & Jabour (2019) FLC 93-898; [2019] FamCAFC 78
Lee v Lee (2019) 266 CLR 129; [2019] HCA 28
Norbis v Norbis (1986) 161 CLR 513; [1986] HCA 17
Robinson Helicopter Co Inc v McDermott (2016) 331 ALR 550; [2016] HCA 22
Number of paragraphs: 54 Date of hearing: 9 February 2023 Place: Sydney (via video link) The Appellant: 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
Appellant
AND: MS DHARUN
Respondent
order made by:
ALDRIDGE J
DATE OF ORDER:
31 march 2023
THE COURT ORDERS THAT:
1.The Application in an Appeal filed on 27 January 2023 is dismissed.
2.The appeal 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).
IT IS NOTED that publication of this judgment by this Court under the pseudonym Dharun & Dharun (No 2) has been approved pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth).
REASONS FOR JUDGMENT
ALDRIDGE J:
INTRODUCTION
Mr Dharun (“the husband”) appeals against property settlement orders made by a judge of the Federal Circuit and Family Court of Australia (Division 2) on 30 August 2022 in proceedings between him and Ms Dharun (“the wife”).
The orders provided for a sum of $42,613, at that time being held in trust as a result of an earlier sale of the former matrimonial home, be paid immediately to the wife. In addition, the husband was to pay the wife $72,144. If that payment was not paid within 60 days, the husband was to cause his interest in two properties located in India to be sold and the proceeds used to pay the said sum to…
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- Dharun & Dharun (No 2) [2023] FedCFamC1A 41
- Case
- [2023] FedCFamC1A 41
- Decision Date
CaseChat Overview and Summary
The court considered whether the primary judge had failed to assess the wife's pre-planned separation and her desire for maximum financial advantage. The court found that there was no basis for such a consideration, and even if it had been, it would not have been a valid matter for determining property division. Regarding the husband's significantly higher financial contribution, the court noted that the primary judge had taken this into account, including the husband's contributions to the mortgage repayments on the family home. The court found no error in the primary judge's consideration of this issue. The husband's submission about his post-separation mortgage payments was also dismissed due to the inconsistency in his evidence and the absence of incontrovertible evidence.
The court also examined the primary judge's handling of the wife's allegations of domestic violence. The court found no error in the primary judge's approach, as the wife's evidence was preferred over the husband's due to the inconsistency in the latter's statements.
The appeal was ultimately dismissed by the court, affirming the primary judge's decisions on the property division and the handling of the wife's allegations of domestic violence.
Orders
Orders of the court
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Background
Background to the litigation
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Evidence
Evidence Before The Court
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Decision
Reasons for decision
Ratio Decidendi
Legal Principle Established
The appellant also filed an Application in an Appeal on 27 January 2023. He sought to adduce further evidence, which was an affidavit sworn by him on 25 January 2023, requesting that his father give evidence in respect of the Indian assets. For the same reasons as above, the application will be dismissed.Did the primary judge fail to consider that the wife “pre-planned the separation and wanted to get maximum financial advantage from the marriage”? (Ground 2) It is true that his Honour did not undertake such a consideration, but there was no basis for doing so. Even if that was the case, it is impossible to see how that would have been a valid matter to take into account in determining the appropriate property division between the parties. Did the primary judge fail to consider the significantly higher financial contribution of the husband? (Ground 3) In addition to taking into account the husband’s contribution of the two properties in India, his Honour was well aware of the husband’s earnings, saying:32.It is common ground that [the husband] was the primary income earner during the parties’ relationship while [the wife] was the primary homemaker and parent. I reject [the husband’s] submission that those activities should sound in a greater assessment of his contributions because he was the predominant financial contributor, even if it is conceded by [the wife] that he was largely responsible for the mortgage repayments on the former matrimonial home.Thus the premise for the ground has not been made out, the primary judge did take it into account and did consider the significantly higher financial contribution of the husband. It is true it appears that the husband’s interests in the Indian properties were obtained prior to the marriage, although that is not entirely clear. What is clear is that there is no suggestion that the wife contributed to the acquisition of these properties. His Honour noted at [28] that neither party made any contribution to the properties throughout the marriage relating to their acquisition, conservation nor improvement. Nonetheless, the primary judge recognised that the husband’s interest in the Indian properties “represents a majority of the parties’ present wealth” (at [36]). His Honour accepted that he had to afford appropriate weight to the introduction of those assets at [36] as a contribution of the husband. Once again, no error has been identified. The husband finally submitted that the primary erred by failing to accept his evidence that since separation he had been paying the mortgage on the family home. As his Honour pointed out at [34], the husband also said that mortgage payments had been made since he vacated the matrimonial home on separation. As the wife gave evidence that no mortgage repayments were made, her evidence was preferred because of the inconsistency in the husband’s. The husband is unable to point to incontrovertible evidence, such as the bank accounts for the mortgage repayments, to demonstrate that his evidence was right and the wife’s was wrong. In such a case, it is difficult to see any error in the factual findings of the primary judge (Lee v Lee (2019) 266 CLR 129; RobinsonHelicopter Co Inc v McDermott (2016) 331 ALR 550).Did the primary judge fail to find that the wife’s allegations of domestic violence were unfounded? (Ground 4)