LONCAR & LONCAR

[2020] FamCAFC 273

FAMILY COURT OF AUSTRALIA

LONCAR & LONCAR [2020] FamCAFC 273

FAMILY LAW – APPLICATION IN AN APPEAL – Dispense with transcript – Where leave is granted for the appeal to be heard without the requirement to include the transcripts of the trial proceedings in the appeal book.

APPLICANT: Ms Loncar

RESPONDENT: Mr Loncar

FILE NUMBER: EAA 127 of 2020

APPEAL NUMBER: SYC 3269 of 2016

DATE DELIVERED: 4 November 2020

PLACE DELIVERED: Sydney

PLACE HEARD: Sydney

JUDGMENT OF: Ryan J

HEARING DATE: 4 November 2020

LOWER COURT JURISDICTION: Federal Circuit Court of Australia

LOWER COURT JUDGMENT DATE: 4 August 2020

LOWER COURT MNC: [2020] FCCA 2094

REPRESENTATION

COUNSEL FOR THE APPLICANT: Mr Jackson

SOLICITOR FOR THE APPLICANT: Maclarens Lawyers

THE RESPONDENT: Self-represented

Orders

1. That the appellant be permitted to proceed with her appeal without having included in the appeal book the transcript of proceedings dated 9, 10, 11 and 20 March 2020.

2. That the costs of the application will 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 Loncar & Loncar 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: SYC 3269 of 2016
File Number: EAA 127 of 2020

Ms Loncar

Appellant

And

Mr Loncar

Respondent

EX TEMPORE REASONS FOR JUDGMENT

Introduction

1. By an Application in an Appeal filed on 26 October 2020, Ms Loncar (“the applicant”) seeks an order that her appeal be heard and determined without the trial transcript.  The trial occurred over four days on 9, 10, 11 and 20 March 2020.

2. The applicant’s appeal is against final property orders made on 4 August 2020 in the Federal Circuit Court of Australia, in proceedings between her and Mr Loncar (“the respondent”). 

3. Essentially, the applicant appeals against orders that require her to pay the respondent the sum of $346,493.05 (Order 1(a)), cause the discharge of the mortgage at Property A (Order 1(b)), and transfer her interest in the B Timeshare to the respondent (Order 1(c)); as well as orders for the respondent to transfer to the applicant his right, title and interest in Property A upon the applicant’s compliance with Order 1 (Order 2) or; if the applicant fails to comply with Order 1, for Property A be sold (Order 3).  The applicant also seeks to appeal a superannuation splitting order allocating $61,140.50 in her favour (Order 7).

4. The applicant deposes that she would not seek to rely upon the transcript in support of her grounds of appeal.  Her appeal is limited to the primary judge’s findings as to the percentage of her contributions and the quantum of adjustments in her favour (applicant’s affidavit filed 26 October 2020, paragraphs 7- 8).  In her affidavit filed in support of this application, the applicant contends that in accordance the primary judge’s directions, counsel who appeared for the parties at trial had submitted “lengthy written submissions as to their positions with respect to property settlement” (applicant’s affidavit filed 26 October 2020, paragraph 6).  In any case, the applicant is confident that she can present her argument without relying on the transcript.  As counsel who appeared for her today indicated, there is no challenge made to his Honour’s finding of fact.

5. The applicant understands that proceeding without the transcript may make success in the appeal more difficult, but that is a risk she is willing to run.

6. I am content to allow the applicant to advance her appeal without provision of the transcript of proceedings at first instance.  I take into account that the primary judge made extensive findings in relation to the oral evidence, none of which is under challenge. Furthermore, the respondent is content that the appeal is conducted without the transcript and he highlights that he himself does not cavil with his Honour’s decision or, as I understand it, any aspect of it.

7. It seems to me that the limited scope of the appeal lends itself to the course proposed by the applicant.  Parties are encouraged to only include in the appeal books the trial material relevant to the matters at issue in the appeal which is the approach the applicant has taken here.  I will order accordingly.

I certify that the preceding seven (7) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Ryan delivered on 4 November 2020.

Associate:

Date:  9 November 2020