GOSWAMI & RAPOZO
[2020] FamCAFC 163
•10 July 2020
FAMILY COURT OF AUSTRALIA
| GOSWAMI & RAPOZO | [2020] FamCAFC 163 |
| FAMILY LAW – APPEAL – APPLICATION IN AN APPEAL – Extension of time – Where the applicant seeks an extension of time to file a Notice of Appeal – Where reasons given orally – Where the settled reasons were necessary to prepare the Notice of Appeal – Where there is therefore a reasonable explanation for the applicant’s delay in filing a Notice of Appeal – Application allowed FAMILY LAW – APPLICATION IN AN APPEAL – PRACTICE AND PROCEDURE - Provision of transcript – Factors relevant in support of an application for the provision of transcript at the Court’s expense – Financial proceedings – Where significant sums previously released to the applicant – Application dismissed. |
| Family Law Act 1975 (Cth) s 75(2) Family Law Rules 2004 (Cth) r 22.03 |
| Forbes & Bream (2008) 222 FLR 96; [2008] FamCAFC 189 Sampson & Hartnett (Provision of Transcript) (2013) FLC 93-542; [2010] FamCAFC 220 |
| APPLICANT: | Mr Goswami |
| RESPONDENT: | Ms Rapozo |
| FILE NUMBER: | SYC | 4628 | of | 2015 |
| APPEAL NUMBER: | EA | 80 | of | 2020 |
| DATE DELIVERED: | 10 July 2020 |
| PLACE DELIVERED: | Sydney |
| PLACE HEARD: | Sydney |
| JUDGMENT OF: | Ryan J |
| HEARING DATE: | 1 July 2020 |
| LOWER COURT JURISDICTION: | Federal Circuit Court of Australia |
| LOWER COURT JUDGMENT DATE: | 25 May 2020 |
| LOWER COURT MNC: | [2020] FCCA 1612 |
REPRESENTATION
| THE APPLICANT: | In person |
| COUNSEL FOR THE RESPONDENT: | Mr Gardiner |
| SOLICITOR FOR THE RESPONDENT: | Steiner Legal |
Orders made 1 July 2020
That the applicant be granted leave to file his Amended Application in an Appeal and Affidavit in support dated 29 June 2020.
That the time for filing a Notice of Appeal against the orders made by Judge Smith on 25 May 2020 is extended up to and including 20 July 2020.
That the applicant be permitted to proceed with his appeal without having included in the appeal books the transcript of proceedings on 21 and 22 May 2020 but may do so if so advised.
The Eastern Appeals Registrar is requested to make arrangements for the applicant to be able to listen (at a registry) to an audio recording of the trial conducted on 21 May and 22 May 2020 at a time convenient to the applicant and the registry.
That the Application in an Appeal dated 29 June 2020 otherwise be dismissed.
That the costs of the application are to be costs in the appeal.
Note: The form of the order is subject to the entry of the order in the Court’s records.
IT IS NOTED that publication of this judgment by this Court under the pseudonym Goswami & Rapozo has been approved by the Chief Justice pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth).
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 r 17.02 Family Law Rules 2004 (Cth).
| THE APPELLATE JURISDICTION OF THE FAMILY COURT OF AUSTRALIA AT SYDNEY |
Appeal Number: EA 80 of 2020
File Number: SYC 4628 of 2015
| Mr Goswami |
Applicant
And
| Ms Rapozo |
Respondent
REASONS FOR JUDGMENT
Introduction
By an Application in an Appeal filed on 16 June 2020, Mr Goswami (“the husband”) seeks an extension of time in which to file a Notice of Appeal from final property orders made by Judge Smith on 25 May 2020. The application was amended and filed with the Court’s leave (without objection) at the commencement of this hearing.
The proceedings were between the husband and Ms Rapozo (“the wife”). The orders provided for the wife to receive the balance of funds arising from the sale of the former matrimonial home in the amount of $201,807 held on trust by E Law Firm (Order 1); for the parties to have sole legal and beneficial ownership of all items of property in their possession and/or control (noting that the wife is the sole beneficial owner of the property at A Street, Town B and is solely liable for the mortgage thereof) (Order 2(a)) and; that the parties be solely liable for all liability encumbering all property to which they are entitled (Order 2(b)).
His Honour’s reasons for judgment were delivered ex tempore on 25 May 2020 after a two day hearing on 21 and 22 May 2020. They extend to some 165 paragraphs.
By operation of r 22.03 of the Family Law Rules 2004 (Cth) (“the Rules”) the last day to file a Notice of Appeal against orders dated 25 May 2020 is 22 June 2020. The settled reasons were made available to the parties on 18 June 2020. The husband contends that he needs more time to consider the trial reasons in order to prepare his Notice of Appeal. He asserts that he should not be disadvantaged by the time taken for the reasons to be published.
The husband also seeks an order for the Court to pay for a copy of the trial transcript in order to prosecute his appeal. He contends that he cannot afford the cost associated with the provision of the transcript. The husband spoke with the transcript provider and he believes that the transcript might cost in the vicinity of $5,000. It is accepted that the transcript of a two day trial will run into some thousands of dollars. In the alternative, he seeks access to the audio recording of the trial.
Background
So as to give this application context, it is necessary to refer to some brief background facts. These are taken from his Honour’s reasons and the documents filed by the husband in this application.
The wife initiated property proceedings by an application filed on 9 July 2015 in the Family Court of Australia. On 19 January 2017, the proceedings were transferred to the Federal Circuit Court of Australia. The final hearing was listed before the primary judge over two days commencing 21 May 2020 and was conducted by videolink.
At the time of the hearing the husband was 47 years old and the wife was 44 years old.
The parties married in Country D in April 2006 and commenced cohabitation in Sydney when the wife moved to Australia in November 2006. They have one child together, X, born 2010 (“the child”). The parties separated on a final basis in November 2014 when the wife left the former matrimonial home.
The husband owned the former matrimonial home at marriage and sold it in July 2015. There remains $201,807 in a solicitor’s trust account from the sale.
During the course of the marriage the parties purchased a property in the wife’s name at A Street, Town B. The property is still owned by the wife and the parties agreed it has a value of $820,000 and subject to a mortgage of $370,281 [4].
The primary judge determined the net asset pool to be worth $712,916 [6].
One of the issues raised by the wife at trial was notional “add backs” or matters to be taken into account pursuant to s 75(2)(o) of the Family Law Act 1975 (Cth) (“the Act”). Pursuant to earlier court orders, $200,000 was paid to the husband by way of interim financial distribution from the proceeds of sale of the former matrimonial home [8]. An additional $160,000 was ordered to be held on trust by the husband and not to be used without notice to the wife [10]. At the trial, the husband gave oral evidence that both of those sums of money had been expended, albeit he failed to provide documentary evidence on this issue [9] and [10].
The wife’s proposal was that, based on the add backs, she should be entitled to the moneys held on trust from the proceeds of sale. The husband’s proposal was that the moneys in trust should be released to him and the wife pay him an additional $200,000.
The primary judge found the husband to be an unreliable witness who failed “to disclose significant financial matters” [153] and the wife to be a reliable witness [115]. Initial contributions were assessed as equal but the wife’s overall contributions during cohabitation were greater [116].
The husband sought an adjustment pursuant to s 75(2) of the Act in respect of his health needs and earning capacity. The husband has a heart condition. The primary judge determined that “the husband cannot be allowed to conduct a case for a section 75(2) adjustment” for several reasons including: the nature in which the husband’s case was presented and set down and; the lack of clarity concerning the husband’s present condition [137]. His Honour determined that an adjustment should be made in favour of the wife as primary carer of the child [159].
Ultimately, his Honour determined that:
161.… [the wife] should be getting more than half of the notional asset pool, but where less than half of that asset pool remains available, then the only order that could possibly do justice and equity between the parties is to make the orders that the wife seeks so that she gets the entirety of the remaining net assets of the parties.
…
163.I will just emphasise again that these orders are not really doing justice and equity to the wife, because she is receiving substantially less than she should have because of the husband’s waste and the husband’s allocation to himself of $160,000 in circumstances where it appears that he was not entitled to do so.
Application for an extension of time
As already mentioned, his Honour’s reasons were given ex tempore on 25 May 2020 and the settled reasons become available to the parties on 18 June 2020.
One of the purposes of reasons for judgment is to enable parties to understand why the orders have been made.
It is also important that reasons are available because it enables the parties to consider whether or not they have proper grounds for appeal. Here, the reasons were given orally and promptly. Given their length, it would be unreasonable to expect anyone, let alone a litigant in person, to be able to formulate a proper Notice of Appeal having heard those reasons only once.
The Court is cognisant of the workload of the Federal Circuit Court of Australia, if reasons are to be given orally, the settled reasons must become available reasonably promptly and certainly within sufficient time to permit the lodging of a Notice of Appeal in accordance with the 28 days provided by r 22.03 of the Rules. Otherwise, one of the main purposes of providing reasons is defeated. The 24 day period between the oral reasons and the settled reasons becoming available is fairly minimal. However, it provided the husband with only four days within which to comprehend the reasons and draft a Notice of Appeal. The wife agreed that is in the interests of justice that an extension of time be granted but only until 20 July 2020. That order will be made.
The husband wanted until September 2020. He thought this would give him time to save for legal advice. I accept that the longer period would enable this to occur but it ignores the effect on the wife of the litigation taking even longer than will be the case. As it is the husband will be given a longer period to file an appeal than is provided for in the rules. And, as was explained during the hearing, he will have an opportunity to amend any Notice of Appeal prior to filing his Summary of Argument.
Application for the provision of transcript
There is nothing within the Act or the Rules which provides for a transcript to be obtained by the Court (see Forbes & Bream [2008] FamCAFC 189) (“Forbes”). In Forbes, the Full Court said at [28]:
From the inception of the operation of the Family Court in 1976, transcript has not been routinely provided to parties. The cost is not provided for in the budget of the Court, and the cost of doing so routinely, would impinge on other necessary expenditure for the proper operation of the Court. …
That is not to say that in exceptional cases the Court may provide a transcript if it was persuaded that it is necessary. The factors that need to be taken into account in exercising that discretion include the nature of the proceedings, whether the transcript sought is integral to the appeal, the financial circumstances of the applicant, and the prima facie merits of the appeal (e.g. see Sampson & Hartnett (Provision of Transcript) (2013) FLC 93-542 at [16]).
The husband represents himself and at present there are no grounds of appeal as the Notice of Appeal is yet to be filed. However the husband appears to assert that he was denied procedural fairness.
In determining whether the Court should pay for a transcript, the nature of the proposed appeal needs to be taken into account. The husband’s proposed appeal is against final property orders. The Court will more readily provide a transcript in a parenting case. The husband has had access to significant amounts of money released to him from the sale of the former matrimonial home for which the primary judge said he has failed to disclose its use. Although on the face of the husband’s evidence he is in a parlous financial position, I am not persuaded that this case justifies the Court spending its limited funds for the trial transcript.
Given the husband’s claim of being denied procedural fairness in the conduct of the trial it is accepted that the transcript is probably required to establish error on the part of the primary judge. The husband says that the transcript “is essential evidence for its probative value” (husband’s affidavit filed 16 June 2020, p. 4 paragraph 24). Thus, provision will be made for him to be able to listen to the audio recording of the trial at the registry which should help him to identify precisely when certain rulings were made. He will also be permitted to prosecute the appeal without a transcript and, should he choose to, he may proceed with only a portion of it. As I explained during the hearing, this is an important forensic decision and the husband’s prospects of success in the appeal might be reduced if he does not provide a complete trial transcript.
There have not been exceptional circumstances identified which would persuade the Court to pay for the trial transcript.
I will order accordingly and, other than as is provided for, the application will be dismissed.
I certify that the preceding twenty-nine (29) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Ryan delivered on 10 July 2020.
Associate:
Date: 10 July 2020
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