FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA
(DIVISION 1)
Bakalov & Bakalov [2021] FedCFamC1F 161
File number(s): BRC 13229 of 2020 Judgment of: WILSON J Date of judgment: 27 October 2021 Catchwords: FAMILY LAW – ARBITRATION – unparticularised complaint loosely based on s 13J and s 13K – held, application dismissed. Legislation: Family Law Act 1975 ss 13H, 13J, 13K and13E Cases cited: Entezam v Devi (2021) 62 Fam LR 637
Gronow v Gronow (1979) 144 CLR 513
House v The King (1936) 55 CLR 499
Kennon v Kennon (1997) 22 Fam LR 1
Mallet v Mallet (1984) 156 CLR 605
Norbis v Norbis (1986) 161 CLR 513
S v S [2003] FamCA 905
Division: Division 1 First Instance Number of paragraphs: 29 Date of hearing: 27 October 2021 Place: Melbourne Counsel for the Applicant: Mr J. Bunnings Solicitor for the Applicant: Cherry Family Lawyers Counsel for the Respondent: Mr R. Clark Solicitor for the Respondent: Allan R De Brenni & Co ORDERS
BRC13229/2020
FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 1)
BETWEEN: MS BAKALOV
Applicant
AND: MR BAKALOV
Respondent
ORDER MADE BY:
WILSON J
DATE OF ORDER:
27 OCTOBER 2021
THE COURT ORDERS THAT:
1.The husband’s application for review of the arbitral award is dismissed.
2.The stay order on the operation of the arbitral award made pursuant to my orders made on 2 August 2021 is lifted.
3.If either party wishes to be heard on costs –
(a)any written submissions by the wife in relation to costs including indemnity costs, must be filed and served by 4:00pm on or before 10 November 2021;
(b)any written submissions the husband in relation to costs must be filed and served by 4:00pm on 24 November 2021; and
(c)a determination on costs will be made on the papers.
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).
Section 121 of the Family Law Act 1975 (Cth) makes it an offence, except in very limited circumstances, to publish proceedings that identify persons, associated persons, or witnesses involved in family law proceedings.
IT IS NOTED that publication of this judgment by this Court under a pseudonym Bakalov & Bakalov has been approved pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth).
REASONS FOR JUDGMENT
WILSON J
INTRODUCTION
On 17 May 2021 the arbitrator published the award in this proceeding. It was amended on 4 June 2021. The arbitrator made orders altering the interests of the parties such that the asset pool, as found by the arbitrator, was divided as to 55% to the applicant wife and 45% to the respondent…
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CaseChat Overview and Summary
The legal issues before the court were whether the husband's application for review of the arbitral award under s 13J of the Family Law Act was valid and if any of the grounds under s 13K(2)(a) to (d) were met to vary the arbitral award. The court examined the husband's arguments and submissions, which did not rely on any of the grounds under s 13K(2) to vary the award. The court found that the husband's application for review of the arbitral award failed, as the arbitrator did not err in exercising his discretion or in applying relevant principles.
In summary, the court dismissed the husband's application for review of the arbitral award and lifted the stay order previously made. The court ordered that if either party wished to be heard on costs, they must file and serve written submissions by specified dates, and a determination on costs would be made on the papers.
This case highlights the importance of properly invoking relevant sections of the Family Law Act and making out a valid basis for review or variation of an arbitral award. The court's decision underscores the need for clear and specific grounds for challenging an arbitral award in family law proceedings.
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
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Ratio Decidendi
Legal Principle Established
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