Bakalov & Bakalov - [2021] FedCFamC1F 161

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

Stanford v Stanford (2012) 247 CLR 108

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…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

Continue reading Bakalov & Bakalov

Details

AGLC: Bakalov & Bakalov [2021] FedCFamC1F 161
Case: [2021] FedCFamC1F 161
Decision Date

CaseChat Overview and Summary

In the case of Bakalov & Bakalov, the husband challenged the arbitral award, which was made pursuant to a proceeding under the Family Law Act 1975. The husband sought to have the award stayed, to be restrained from executing the award, to set aside certain findings, and to adjust the division of assets. The wife, on the other hand, sought to dismiss the husband's application and sought indemnity costs.

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