Beirne & Beirne (No 2)
[2022] FedCFamC1F 54
FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA
(DIVISION 1)
Beirne & Beirne (No 2) [2022] FedCFamC1F 54
File number(s): BRC 10071 of 2021 Judgment of: WILSON J Date of judgment: 11 February 2022 Catchwords: FAMILY LAW – ARBITRATION – application under s 13J or 13K to review or set aside arbitral award – grounds failing to meaningfully articulate basis of the application – no ground established – application dismissed. Legislation: Family Law Act 1975 ss 75(2) and 79(4) Cases cited: Beirne & Beirne [2021] FedCFamC1F 59
Entezam & Devi (2021) 62 FamLR 637
In the Marriage of Jabour (2019) 59 Fam LR 475
Division: Division 1 First Instance Number of paragraphs: 44 Date of last submissions: 12 January 2022 Place: Melbourne Solicitor for the Applicant: KLM Solicitors Solicitor for the Respondent: Baldwins Lawyers ORDERS
BRC 10071 of 2021 FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 1)
BETWEEN: MS BEIRNE
Applicant
AND: MR BEIRNE
Respondent
ORDER MADE BY:
WILSON J
DATE OF ORDER:
11 FEBRUARY 2022
THE COURT ORDERS THAT:
1.The wife’s application in a proceeding filed 19 October 2021 is dismissed.
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 the pseudonym Beirne & Beirne is approved pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth).
REASONS FOR JUDGMENT
WILSON J
INTRODUCTION
On 16 September 20221 I determined that the award of the arbitrator in this proceeding was to be registered under s 13H of the Family Law Act and I made an order to that effect.[1]
[1] Beirne & Beirne [2021] FedCFamC1F 59.
Pursuant to my reasons I permitted the respondent to file any application under s 13J or s 13K of the Family Law Act but required her to do so with an accompanying affidavit by 4:00pm on 18 October 2021.
The respondent filed an application on 19 October 2021 in which she sought orders for the review and a variation of the arbitrator’s amended award so that it read in the manner set out in annexure A to the application dated 19 October 2021.
In her application the respondent did not identify the grounds on which she relied in support of either the application for relief under s 13J or her application for relief under s 13K.
The respondent made an affidavit on 18 October 2012 in support of her application for relief under s 13J or s 13K. The applicant husband did not make any affidavit on this application.
The wife relied on s 13J and s 13K without differentiation.
The wife relied on four grounds.[2] She called them “grounds of review”. Her description of those grounds as “grounds of review” seemed to indicate that the wife was relying on s 13J on this application rather than on s 13K, the latter provision being referrable to varying the arbitral award as opposed to reviewing the arbitral award on a question of law.
[2] Those four grounds were set out in the wife’s summary of argument. They were not set out in her application in a proceeding where they should more properly have been found.
SYNOPSIS
For the reasons that follow, in my view none of the grounds of review were made out with the consequence that the wife’s application filed 19 October 2021 must be dismissed.
THE DISTINCT PROVISIONS OF S 13J AND S 13K
In this application the wife purported to interchangeably invoke both s 13J as well as s 13K of the Family Law Act. The two provisions address quite different circumstances and are not to be invoked as if mutually interchangeable. Section 13J may be invoked if an applicant seeks to set aside an arbitral award on the basis that a question of law arises from the award which this court in called upon to address. It is important to recognise that the arbitration provisions of the Family Law Act do not contain a section that permits a party aggrieved by the arbitrator’s decision to “appeal” in like manner that a litigant can appeal to a Full Court after a trial before a single judge of the Court.
Under s 13J(1) of the Family Law Act, a party to a registered award[3] is entitled to “apply for review of the award on one or more questions of law”. Under s 13J(2)(a) of the Family Law Act, the judge hearing the review application may determine all questions of law arising in relation to the arbitration.
[3] The award must first be registered under s 13H before any application under s 13J may be bought. See also Entezam & Devi (2021) 62 FamLR 637.
Under s 13J(2)(b) the judge hearing the review application has power to “make such decrees as the judge” thinks appropriate “including a decree affirming, reversing or varying the award.”
While certain wording in s 13K is found in s 13J, the two sections address different issues. Section 13J concerns the determination of one or more questions of law arising in relation to the arbitration. Conversely, under s 13K, once an award is registered under s 13H, one of the courts set out in s 13K(1) may make a decree affirming, reversing or varying (relevantly) the arbitral award, if the court is satisfied about any one of the matters set out in s 13K(2)(a)-(d). Paraphrased, those matters included fraud, the award being void, voidable or unenforceable, a relevant change of circumstances rendering it impracticable to carry out the award, or bias or lack of procedural fairness. The Court may only make a decree under s 13K(1) if satisfied of one of the matters in s 13K(2)(a) to (d).
In this case none of the grounds of review on which the wife relied remotely approximated any one or more of the elements of s 13(K)(2)(a) to (d). Having regard to the injunction in the opening words of 13K(2) that the “court may only make a decree” under s 13K(1) if satisfied about one or more of the matters in s 13K(2)(a) to (d), then in circumstances where the wife does not rely on any one of those elements, she must be taken to be relying on s 13J and not on s 13K.
That said, for the purpose of s 13J, in this case the wife did not expressly identify the question or questions of law that she contended were enlivened by the grounds of review she pressed. She made no submissions about whether the phrase “question of law” equated with “error of law”. Nor did the wife pose any question of law in respect of which my determination was sought. Instead, she identified four matters that she contended went to the validly of the exercise of the arbitrator’s discretion on discrete issues.
Having regard to the fact that the wife did not invoke any of the elements of s 13K(2)(a)-(d), I have proceeded on the basis that this application by the wife is made under s 13J and that the “question of law” on which the wife relies is whether the arbitrator’s discretion was validly exercised or whether curial intervention is justified by reason of the fact that the exercise of the arbitrator’s discretion somehow miscarried.
GROUND ONE
The wife formulated ground one by reference to the adequacy of the arbitrator’s reasons. Ground one was as follows –
That the arbitrator erred by failing to give adequate reasons to allow an understanding of how she reached her conclusion “that the parties’ contributions were equal” in circumstances where the arbitrator found that the wife was solely responsible for contributing 45% of the current asset pool post-separation.
The wife contended that the arbitrator failed to give adequate reasons for the arbitrator’s conclusions that the parties’ contributions were equal having regard to the arbitrator’s finding that the wife contributed 45% of the pool subsequent to separation.
It is important to recognise that –
(a)the value of the parties’ assets in issue in this arbitration was a little over $300,000;
(b)the parties married in 1980 and while the precise date of separation was disputed, finally separated in either 2001 or 2018; and
(c)the parties divorced in 2020 and by the date of the arbitration were approximately 60 years of age.
Nowhere in the arbitrator’s reasons is there any reference to the wife being “solely responsible for contributing 45% of the current asset pool post-separation”, those being the words of ground one.
There being no express finding to the effect that the wife made 45% of post separation contributions in the manner alleged, no requirement existed for the arbitrator to provide reasons to that effect. I am fortified in that conclusion by the wife’s submissions about the alleged 45% of post-separation contributions said to have been made by the wife. In paragraph 25 of the wife’s summary of argument, her solicitor submitted that in arriving at the finding that the parties’ contributions were equal “the arbitrator must have found” (those were the wife’s solicitors’ words) –
That the husband’s greater financial contribution during the relationship, and greater non-financial contribution both during the relationship and post-separation were equal to the wife’s post-separation contribution of superannuation, which accounts for 45% of the asset pool.
As is readily apparent, that was a construction by the wife based on the arithmetic in this case. The arbitrator did not make a finding to that effect. I do not accept that the arbitrator made an error in failing to provide adequate reasons when set against a backdrop where the wife has arithmetically construed post-separation contributions at 45%.
Ground one is devoid of merit. I dismiss it.
GROUND TWO
Under this ground, the wife focused on the arbitrator’s statement that the exact date of separation did not greatly matter. The wife submitted that the arbitrator made an error of law in that observation.
Ground two was as follows –
That the arbitrator erred at law in concluding that “it matters not greatly to the outcome of this matter the exact date of separation”.
The genesis of the wife’s complaint about the date of separation was her contention about superannuation. The wife argued that her evidence was to the effect that she accumulated superannuation following the date of separation. The wife submitted that the husband was unable to assert that any contribution to “this asset” (her word in paragraph 30 of her summary of argument) because the parties had separated before the wife commenced accruing her superannuation.
Two issues arose under ground two. The first was the date of separation. The second was the arbitrator’s treatment of superannuation.
So far as the date of separation was concerned, the arbitrator recorded the wife’s asserted date as being 19 January 2001 as well as the husband’s asserted date being 19 November 2018. The arbitrator found as follows –
I am satisfied that it is more likely than not that the parties separated on 19 January 2001.
The arbitrator then stated that the parties’ relationship was to be regarded as being a long marriage. The arbitrator adopted a one-pool global approach. There is nothing in the award or in the wife’s submissions to the effect that the wife propounded a separate pool in relation to superannuation. In other words, there is nothing in the material to suggest that the wife argued before the arbitrator that superannuation ought to be separately addressed as a stand-alone item.
So far as the wife’s superannuation was concerned, the arbitrator on page 6 of the arbitrator’s reasons identified that the main asset was the wife’s superannuation, accrued primarily post-separation. On page 10 of the arbitrator’s reasons the arbitrator stated that the main assets of the parties were the former matrimonial home and the wife’s superannuation.
After recognising that neither of the parties entered their union with any assets of significance, the arbitrator adopted a global approach towards the asset pool then examined each party’s contributions in accordance with s 79(4)(a)-(c), and in accordance with s 79(4)(d) along with s 75(2) of the Family Law Act. While it is true that the arbitrator did not specifically address the contention that the wife’s superannuation was accumulated following separation, this ground of review attacks the arbitrator’s wording that the exact date of separation did not greatly matter. The arbitrator found in support of the wife’s contentions in relation to the date of separation in any event. It must not be overlooked that the arbitrator found, on balance, that the parties’ contributions were equal having regard to the length of the relationship and the parties’ roles during their relationship and subsequent to it. The arbitrator recognised the husband’s post-separation contributions in connection with the care of one child and grand-children.
I detected no error in the arbitrator’s path of reasoning. I do not accept that error of law was demonstrated by the arbitrator’s finding that the exact date of separation did not much matter. The arbitrator adopted the wife’s date of separation. The arbitrator recognised that superannuation was one of the two major assets in the case. The arbitrator, perfectly properly, examined the myriad of contributions[4] and did not engage in a mathematical analysis, as the authorities say is the correct approach.
[4] In the Marriage of Jabour (2019) 59 Fam LR 475.
In my view, ground two is without merit.
GROUND THREE
This ground focused on the sufficiency of the arbitrator’s consideration of the wife’s invalidity retirement certificate. The wife argued that the arbitrator failed to consider the whole of the wife’s medical evidence. The husband submitted that the arbitrator did in fact give adequate consideration to s 75(2) issues. Ground three was as follows –
That the arbitrator has failed to give sufficient consideration to the wife’s Invalidity Retirement Certificate, which has led the arbitrator into error in concluding that the wife may be able “to return next year to the workforce”, which in turn influenced the arbitrator’s decision regarding an adjustment pursuant to section 75(2).
The relevant passages of the arbitrator’s reasons, taken from page 10, culminated in the conclusion that the arbitrator could not be satisfied that the wife was unable to re-join the workforce after 16 February 2022. The arbitrator stated as follows –
The wife states that she is unable to return to the workforce due to her medical condition and provides an Invalidity Retirement Certificate dated 25 August 2020 (citing to two undisclosed medical reports from February and May 2020) and a medical report by Dr F dated 17 February 2020 in support of this contention. The best evidence I have, Dr F's report, cites the condition as being complex posttraumatic stress disorder/generalised anxiety disorder/major depression disorder. However, this medical report only relates to her being unable to work for a period of two years.
In the circumstances, I cannot be satisfied that it is more likely than not that the wife will be unable to re-join the workforce after 16 February 2022. [5]
[5] Emphasis from original document.
The wife exhibited the invalidity retirement certificate to her affidavit. That certificate was given in accordance with the rules for the administration of the Public Sector Superannuation Accumulation Plan (“the plan”). Pursuant to that certificate, the delegate certified that the wife, as at 25 August 2020, was because of any physical or mental condition unable to perform her duties and she was entitled to invalidity benefits under the plan.
The wife submitted that the arbitrator did not disclose the arbitrator’s reasoning about why the evidence of Dr F was preferred over the invalidity retirement certificate. I disagree. The delegate who wrote the invalidity retirement certificate stated that she relied on the reports of two doctors, one of whom was a consultant psychiatrist and the other was Dr F, a general practitioner. The delegate referred to Dr F’s 29 May 2020 report. That may not have been the same as the report on which the arbitrator relied, it being dated 17 February 2020. According to the arbitrator, the 17 February 2020 Dr F report related to the wife’s inability to work for a period of two years. That led the arbitrator to state that the arbitrator could not be satisfied that it was more likely than not that the wife would be unable to re-join the workforce after 16 February 2022. That conclusion was open to the arbitrator. I do not accept the fundamental premise of ground three. The arbitrator quite properly found that the medical evidence of Dr F supported a finding of inability to re-join the workforce for a specific period only. It did not support a conclusion of inability for an open-ended duration.
It was open to the arbitrator to look at the Dr F’s report as a separate instrument, which the arbitrator did, and to reason, as the arbitrator also did, that based on the Dr F’s report, any incapacity was of limited duration only. There was no error in so doing.
I take the view that ground three was not made out.
GROUND FOUR
Under this ground, the wife purported to impugn the arbitrator’s findings about the wife’s inability to receive a lump sum payment for total and permanent disability. In her summary of argument the wife submitted that the arbitrator simply assumed that the wife was entitled to some lump sum payment thereafter making an adjustment in favour of the husband. The wife submitted that the arbitrator failed to consider the conditions that needed to be satisfied before the wife could expect to receive any total and permanent disability lump sum payment.
So far as the evidence about any total and permanent disability lump sum payment was concerned, the arbitrator mentioned that the wife failed to provide documentation in response to the arbitrator’s request dated 15 February 2021. The arbitrator also stated that the wife was able to apply to her superannuation fund for a lump sum total and permanent disability payment after ceasing her employment at Centrelink. On that issue the arbitrator wrote as follows –
The wife acknowledged that she is aware, and has communicated same to the husband, that she may be eligible for a Total and Permanent Disability payment from her superannuation. She stated that she has not made any application, yet.
In my view, ground four was devoid of merit. The arbitrator made no error in making investigations about the wife’s entitlement to a lump sum payment in respect of total and permanent disability. Further, the arbitrator made no error in considering the husband’s assertion that the wife was able to receive a lump sum payment on account of total and permanent disability. That was an issue relevantly raised under s 75(2)(o).
Ground four failed.
CONCLUSION
None of the grounds of review succeeded.
I dismiss the wife’s application in a proceeding filed 19 October 2021.
I certify that the preceding forty-four (44) numbered paragraphs are a true copy of the Reasons for Judgment of the Honourable Justice Wilson. Associate:
Dated: 11 February 2022