Pillai and Doshi - [2011] FamCAFC 143

FAMILY COURT OF AUSTRALIA

PILLAI & DOSHI

[2011] FamCAFC 143

FAMILY LAW - APPLICATION IN AN APPEAL – where the husband seeks to review the exercise of power by the Appeal Registrar – husband seeks that transcript be obtained by the Court and the appeal books be prepared by the Appeal Registrar – alleges he is unable to afford the costs of obtaining transcript and preparing the appeal books - seeks an order that the Court obtain the recordings made by Auscript in order to verify the accuracy of transcript – no specific grounds of appeal contained in the husband’s appeal documents – scandalous comments made in the Notice of Appeal – not persuaded that any of the orders sought should be made – application dismissed.

Family Law Act 1975 (Cth)

APPLICANT:

MR PILLAI

RESPONDENT:

MS DOSHI

INDEPENDENT CHILDREN’S LAWYER:

CHRIS TESORIERO

FILE NUMBER:

DGC

664

2007

APPEAL NUMBER:

2011

DATE DELIVERED:

6 June 2011

PLACE DELIVERED:

Melbourne

PLACE HEARD:

Melbourne

JUDGMENT OF:

Strickland J

HEARING DATE:

6 June 2011

REPRESENTATION

SOLICITOR FOR THE APPLICANT:

In Person

SOLICITOR FOR THE RESPONDENT:

Perry Weston

SOLICITOR FOR THE INDEPENDENT CHILDREN’S LAWYER

Townsend Wylde Lawyers

Orders

The Application in an Appeal filed by the husband on 16 May 2011 be dismissed.
Paragraph four (4) of the order made by Registrar Marrone on 2 May 2011 be amended by substituting 1 August 2011 for 14 June 2011.

IT IS NOTED that publication of this judgment under the pseudonym Pillai & Doshi is approved pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth).

FAMILY COURT OF AUSTRALIA AT MELBOURNE

FILE NUMBER: DGC 664 of 2007

MR PILLAI

Applicant

And

MS DOSHI

Respondent

EX TEMPORE REASONS FOR JUDGMENT

This is an application in an appeal filed by the husband on 16 May 2011 seeking a number of orders. Primarily though, the husband is seeking to review the exercise of power by the Appeal Registrar on 2 May 2011 when the Appeal Registrar made a number of orders in relation to an appeal filed by the husband against orders made by Young J on 3 February 2011. The application is opposed by the wife and by the Independent Children’s Lawyer.
The husband filed an amended Notice of Appeal on 18 April 2011 against those orders and the matter came before the Appeal Registrar, Registrar Marrone, on 2 May 2011, in the ordinary course of progressing the appeal.
On that day the Appeal Registrar conducted a directions hearing to prepare the appeal and, in particular, to identify the documents which should be included in the appeal books, and to make any other ancillary orders. The orders made by Registrar Marrone are as follows:
1.That the Husband’s oral application made this day that the Appeal Registrar be responsible for obtaining the necessary transcript and for preparation of the appeal books is dismissed.
2.That the appellant Husband be responsible for the preparation of the appeal books.
3.That the appeal books for the appeal are to comprise each of the following documents arranged in the following order:
(a)Amended Notice of Appeal filed 18 April 2011;
(b)Order of the Honourable Justice Young made 3 February 2011;
(c)Reasons for Judgment delivered by the Honourable Justice Young on 3 February 2011;
Other relevant orders and judgments
(d)Order made by Federal Magistrate Baker on 20 April 2009 (together with a copy of the minutes signed by the parties);
(e)Reasons for Judgment delivered by Senior Registrar FitzGibbon on 17 December 2009;
(f) Reasons for Judgment delivered by Senior Registrar FitzGibbon on 13 January 2010;
(g)Reasons for Judgment delivered by the Honourable Justice Cronin on 2 March 2010;
Applications
(h)Amended Initiating Application filed by the Husband on
1 November 2010;
(i)Further Amended Response filed by the Wife on
5 January 2011;
Affidavits and other documents
(j)Financial Statement of the Husband sworn 9 and filed
12 August 2010;
(k)Affidavit of the Husband sworn 10 and filed
13 September 2010;
(l)Affidavit of the Husband sworn 31 October and filed
1 November 2010;
(m)Affidavit of the Wife sworn and filed 5 November 2010;
(n)Financial Statement of the Wife sworn and filed
5 November 2010;
(o)Affidavit of [Ms B] sworn and filed 8 November 2010;
(p)Affidavit of [Ms AS] sworn 5 and filed 25 November 2010;
(q)Affidavit of [the paternal grandfather] sworn 1 and filed 13 September 2010;
(r)Affidavit of [the paternal grandmother] sworn 31 October and filed
1 November 2010;
(s)Case Outline document of the Wife filed 16 December 2010;
(t)Case Outline document of the Husband filed
16 December 2010;
(u)Case Outline document of the ICL filed 20 December 2010;
(v)Orders sought by the Husband filed 5 January 2011;
(w)Final Parenting orders proposed by the ICL filed
5 January 2011;
Affidavits relied on but not admitted into evidence
(x)Affidavit of the Husband sworn 10 July 2009;
(y)Affidavit of the Husband sworn and filed 13 October 2009;
(z)Affidavit of the Husband sworn 27 November and filed
2 December 2009;
Family & Other Reports
(aa)Affidavit of Dr [D] sworn 18 May and filed
10 June 2010 to which is annexed his Psychiatric Report dated 16 February 2010;
(bb)Family Report of Mr [U] dated 2 August 2010;
Transcript
(cc)Transcript of proceedings before the Honourable Justice Young on 20 December 2010;
(dd)Transcript of proceedings before the Honourable Justice Young on 21 December 2010;
(ee)Transcript of proceedings before the Honourable Justice Young on 22 December 2010;
(ff)Transcript of proceedings before the Honourable Justice Young on 23December 2010;
(gg)Transcript of proceedings before the Honourable Justice Young on 5 January 20110;
Exhibits
(hh)List of Exhibits; (copy attached);
(ii)Copies of each relevant exhibit, if practicable.
4.That no later than 14 June 2011, the appellant Husband file in the Southern Regional Appeal Registry of the Court four (4) copies of the appeal books, together with a certificate pursuant to Chapter 22 Rule 22.20(2) of the Family Law Rules and serve two (2) additional copies on the respondent Mother and if funded to participate in the appeal, serve two (2) additional copies on the Independent Children’s Lawyer.
5.That to the extent that these orders do not comply with any provision in the Family Law Rules, then such compliance be dispensed with.
Specifically Mr Pillai in his application seeks that paragraphs 1 and 2 of that order be set aside, and, in effect, he seeks that the transcript be obtained by the Court, and the appeal books be prepared by the Appeal Registrar.
In relation to paragraph 3 of the orders made on 2 May 2011 Mr Pillai in paragraph 8 of his current application seeks further documents be included in the appeal book, and in paragraph 9 he seeks that two exhibits be excluded. I will deal with those matters in a moment.
Mr Pillai seeks other orders in his application and I will try and deal with those at the outset.
Firstly, not only does Mr Pillai seek an order that the Court obtain the transcript of the proceedings but also the actual recordings by the contractor who transcribes proceedings, pursuant to a contract with the Court, namely Auscript. Mr Pillai has referred to this in his affidavit in support of his application which was also filed on 16 May 2011, and he has elaborated on this issue today.
He seeks that those recordings be before the Court because he says he cannot be satisfied of the accuracy of the transcript. He says in effect that if there are mistakes that have been made, then that is a method to pick up those mistakes and clarify them.
For my part, whether it is Mr Pillai who is to obtain the transcript and prepare the appeal books or whether it is to be the Court, no proper basis has been established by Mr Pillai for obtaining the actual recordings from the contractor, Auscript. That would be an entirely unnecessary expense and an unnecessary exercise. The transcript is provided to the Court pursuant to a contract and is taken to be accurate. Thus I propose to certainly dismiss that part of Mr Pillai’s application.
Next, in paragraph 10 Mr Pillai seeks that if a party engages legal representatives, then they should be solely and fully responsible for their own legal costs.
Now, I do not quite understand that application. The fact of the matter is if a party engages legal representatives that party is primarily responsible for any legal costs incurred, but that does not prevent an application for costs being paid by a party in the course of, or at the conclusion of any Court proceedings. I do not see the need for such an order and so I propose to dismiss paragraph 10.
In relation to paragraph 11, that seems to me to be part of paragraph 6, namely the preparation of the appeal books and I will deal with it in that context.
In paragraph 12, the husband seeks that “the parties have liberty to inspect the Appeal books prior to the Appeals Hearing and such dates be announced by the Court”.
The fact of the matter is that the appeal books, again regardless of who prepares them, will be made available to the parties well before the appeal hearing and each party can then obviously peruse and digest whatever is in those appeal books. I do not see that an order in those terms is necessary or justified at all.
Paragraph 13 I have already commented on during submissions, but I repeat that for the purpose of these reasons. Mr Pillai seeks, in effect, that the solicitors for the wife be banned or restrained from writing letters “to incite, intimidate or provoke the Applicant and that only a cover letter may be written in relation with (sic) any service of documents.”
I have indicated that I am not prepared to make that order and I have explained why, but to repeat, in my view, it is an inappropriate application. Mr Pillai has annexed certain correspondence that he has received from the solicitors for the wife. I have read that correspondence. There is nothing in that correspondence which, in my view, is untoward or inappropriate or, as Mr Pillai describes it, incites, intimidates or provokes. In my view, it is perfectly proper correspondence emanating from a respondent facing an appeal.
I have carefully read the amended Notice of Appeal and I have serious concerns about the content of it and, in my view, it was perfectly proper for the solicitors for the wife to raise issues about the Notice of Appeal, and I will come to that later in these reasons.
In relation to the issue of the obtaining of the transcript and the preparation of the appeal books, Mr Pillai tells me that he has obtained a quote from the transcription service and it is $2,200 to provide the transcript. In addition, of course, there would be costs associated with the preparation of the appeal book, for example further copying costs, given the number of copies that are required for the purposes of the appeal. Mr Pillai, I thought, in his affidavit, was raising issues other than costs in relation to who should obtain the transcript and prepare the appeal books, but as he has explained to me today, it is a question of costs and his alleged inability to afford the costs of obtaining the transcript and preparing the appeal books.
Mr Pillai has provided as an annexure to his affidavit in support of this application, a financial statement setting out what he says is his current financial position. I note that he is in full-time employment as a supervisor and that he declares his total average weekly income at $1,309 per week.
The position in relation to property settlement is that, property settlement orders have now been made. Prior to those orders being made, though, a house property was sold and the net proceeds of that sale were being held in a trust account on behalf of both parties and was earning interest. As I understand it, there was in excess of $100,000 held in that trust account.
Mr Pillai has filed a Notice of Appeal against the orders for property settlement and that has, in effect, prevented the payment out of any moneys held in the trust account. I have been provided with a copy of an email sent by the husband on 14 March 2011 to the wife’s solicitor. Part of that email reads:
For the moneys that are in trust account there should not be any withdrawals and any disbursements.
Ms Johns, from the bar table, has told me that on her calculations, pursuant to the orders for property settlement, Mr Pillai could expect to receive not less than $20,000 from those moneys. Now, of course, Mr Pillai has appealed those orders. I have not seen any of those documents though and, obviously, I cannot say what is going to be the result of the appeal.
I note that there is no reference in the financial statement of the husband to the moneys held in trust.
The position, quite simply, is that I am not satisfied that the husband cannot afford to pay the costs associated with his appeal, including the costs of obtaining the transcript and the costs of preparing the appeal books.
I note that Ms Johns during the course of the hearing today, informed me that her client’s primary position was that the husband can afford to meet those costs, but if I was so disposed her client would be prepared to have an order made that moneys be disbursed from the moneys being held in trust to allow Mr Pillai to specifically meet the costs of obtaining the transcript, on the condition that an equivalent amount of money was paid out of those moneys to the wife to meet her legal costs. That in effect became an oral application made today.
Mr Pillai indicated in his submission to me that he opposed that oral application insofar as it provided for any moneys to be paid to the respondent.
In the circumstances I do not propose to make any order about that including an order in the terms sought by the wife. As I say, it was very much a secondary position and, to repeat, I am not persuaded that the husband cannot afford to meet the costs of the appeal including the costs of obtaining the transcript and preparing the appeal books in any event.
However, cost is not the sole criterion in terms of who should prepare the appeal books. This is an appeal brought by the husband. He is seeking to challenge orders made by Young J. That is his right, but he needs to then deal with the consequences of appealing which is, inevitably, costs, and as he has discovered, the cost of transcript and the costs of preparing the appeal books.
He is a man who is in full-time employment. There is also money being held in trust in respect of which he could easily arrange for the disbursement of sufficient to meet any costs that he might have, but he has chosen not to.
Coming then to paragraphs 8 and 9 of the husband’s application. To repeat, paragraph 8 seeks to include further documents in the appeal book. With the document identified at 8(b) though it is apparent that is already in the list of documents set out in the order of 2 May 2011.
It is an undeniable fact, although Mr Pillai wasn’t prepared to concede it, that none of the other documents in paragraph 8 were ever made exhibits before the trial Judge. Mr Pillai has not been able take me to anything in his Honour’s reasons where his Honour has identified any of these documents as being before him by way of evidence. He has also not taken me to any outline of case where these documents are relied on for the purposes of the proceedings. In short, he has not persuaded me that any of the other documents in paragraph 8 were before the trial Judge as evidence and relied upon by his Honour and, thus, at least prima facie should be included in an appeal book, and that is leaving aside the question of the relevance of these documents.
Thus I propose to dismiss paragraph 8. I have explained to Mr Pillai that if he wishes to put further evidence before the Appeal Court there is an avenue that he can follow and that is to file an Application in an Appeal seeking to lead further or fresh evidence, but that is a matter for him.
Next, in relation to paragraph 9, Mr Pillai seeks to exclude two exhibits. He says his reason for that is they were not produced in affidavits, nor were they produced pursuant to a subpoena and his comment generally is that they were not produced in accordance with the Evidence Act. I am not sure to what that refers, but none of the objections that Mr Pillai has raised have any basis.
The fact of the matter is W4 and W5 were exhibits before his Honour and as such they were evidence before his Honour. The documents were a letter and a school report, and in my view, they are relevant to the appeal. Indeed, Mr Pillai has not suggested otherwise.
That deals with all the paragraphs that I need to deal with in the husband’s application.
I said a moment ago though that I wanted to comment on the amended Notice of Appeal that had been filed on 18 April 2011 by Mr Pillai.
Mr Pillai is acting for himself and as Young J has commented in his reasons, Mr Pillai, did a very good job in representing himself, but an appeal is an entirely different exercise and it is quite apparent from the appeal documents filed that Mr Pillai would do well to obtain some legal advice.
His grounds of appeal cover 16 pages. I have read them carefully, but it is almost impossible to identify amongst those 16 pages any specific grounds of appeal. What Mr Pillai has done, it seems, is work through his Honour’s reasons for judgment and commented on almost each and every paragraph of his Honour’s judgment and put his, that is Mr Pillai’s, position in relation to it.
The purpose of a Notice of Appeal setting out the grounds of appeal is to identify the alleged errors made by the trial judge in his reasons for judgment. It is not an avenue for Mr Pillai to comment generally upon his Honour’s reasons for judgment and, to repeat, he would do well to seek some legal advice about the nature of an appeal and how an appeal should be conducted, because otherwise he might find himself in some difficulty when the Appeal Court comes to deal with these 16 pages of alleged grounds of appeal. But again that is a matter for Mr Pillai.
I also note that Mr Pillai has been quite scandalous in some of the comments that he has made in his Notice of Appeal. For example, in paragraph 16 of the grounds of appeal he has suggested that the orders of the Senior Registrar not only should be labelled criminal but also should be labelled an act of serious child abuse. He says this on the advice of, as he describes it, “some legal and child experts”.
Sprinkled throughout the 16 pages there are similar comments, such as in paragraph 19. There it is alleged that Cronin J condoned child abuse by supporting the orders of the Senior Registrar.
My point at this early stage is to draw these matters to Mr Pillai’s attention and to suggest, again, that he obtain some legal advice about the nature of an appeal and how an appeal should be conducted, and also, to suggest to him that he should perhaps look at amending his grounds of appeal to just identify errors or alleged errors by the trial Judge upon which the Appeal Court might, in fact, be able to act.
I have indicated a number of paragraphs of the application that I propose to dismiss, but given that I am not persuaded by Mr Pillai that I should make any of the orders that he seeks, I propose simply to dismiss the application without identifying the individual paragraphs, but the effect is the same.

I certify that the preceding forty-three (43) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Strickland delivered on 6 June 2011.

Associate:

Date: 1 July 2011