Belding & Belding - [2020] FamCA 1027

FAMILY COURT OF AUSTRALIA

BELDING & BELDING

[2020] FamCA 1027

FAMILY LAW – NATIONAL ARBITRATION LIST – s 13K(2)(c) of the Family Law Act – applicant seeking orders varying arbitral award because “in circumstances that have arisen since the award was made, it is impracticable for some or all of it to be carried out” – arbitrator requiring costs to be paid by a date since expired – applicant needing property to be sold in order to raise costs ordered to be paid – husband opposing variation – directions given.

Family Law Act 1975 (Cth), ss 13E, 13H, 13K, 80, 117

Guild & Stasiuk [2020] FamCA 348

APPLICANT:

Ms Belding

RESPONDENT:

Mr Belding

FILE NUMBER:

BRC

2195

2020

DATE DELIVERED:

4 December 2020

PLACE DELIVERED:

Melbourne

PLACE HEARD:

Melbourne

JUDGMENT OF:

Wilson J

HEARING DATE:

26 November 2020

REPRESENTATION

COUNSEL FOR THE APPLICANT:

Not applicable

SOLICITOR FOR THE APPLICANT:

Natalie Mcdonald Law

COUNSEL FOR THE RESPONDENT:

Mr M. Taylor

SOLICITOR FOR THE RESPONDENT:

TLG Law

Orders

The costs award made by Bruce Thiele on 15 October 2020 is varied to allow the applicant wife to pay the sum of $16,847, the sum stipulated in the costs award, from the proceeds of sale of the D Town home.
On or before 4:00pm on 18 December 2020 the parties must file and serve any further affidavit material and submissions as they may be advised to file in relation to the following points –
(a) whether the sale of the D Town property is to be by private treaty or public auction;
(b)in what timeframe any such sale is to occur; and
(c)any other issue raised by Mr Taylor’s written submissions dated 25 November 2020.
The issues raised as aforesaid will be determined on the papers.

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 Belding & Belding 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).

FAMILY COURT OF AUSTRALIA AT MELBOURNE

FILE NUMBER: BRC 2195 of 2020

Ms Belding

Applicant

And

Mr Belding

Respondent

REASONS FOR JUDGMENT

Introduction

Following the arbitration of this proceeding before Bruce Thiele, the arbitrator determined that costs were properly payable under s 117(2) of the Family Law Act and Mr Thiele ordered the wife to pay the husband’s costs on a party-party basis in the sum of $16,847. The arbitrator published an award on costs dated 15 October 2020.
The arbitrator’s substantive award on the matters referred for his determination under s 13E of the Family Law Act was dated 24 September 2020.…

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 Belding & Belding

Details

AGLC: Belding & Belding [2020] FamCA 1027
Case: [2020] FamCA 1027
Decision Date

CaseChat Overview and Summary

In *Belding & Belding*, the Family Court of Australia considered an application by Ms Belding (the applicant wife) to vary an arbitral award concerning costs. The dispute arose after an arbitrator, Bruce Thiele, ordered the wife to pay the husband’s costs of $16,847 on a party-party basis, with payment due within 30 days of 15 October 2020. The wife sought to vary this order, arguing that circumstances arising since the award made it impracticable to comply with the payment deadline.

The primary legal issue before the Court was whether it had the power to vary the registered arbitral award under section 13K(2)(c) of the *Family Law Act 1975* (Cth). This section permits a court to vary an award if it is satisfied that, in circumstances that have arisen since the award was made, it has become impracticable for some or all of it to be carried out. The Court also had to consider the husband's opposition to the variation and his proposed amendments to the award concerning the sale of a property and the payment of other sums.

Justice Wilson found that the applicant had raised an arguable case for variation under section 13K(2)(c). The wife's solicitor deposed that the applicant had suffered injuries in an accident on 29 October 2020, rendering her unable to work until at least 6 December 2020, and potentially for three months thereafter. This inability to work meant she could not raise the funds to pay the costs order by the stipulated date. The Court noted that "impracticable" does not mean "impossible" and referred to *Guild & Stasiuk* for guidance on its meaning. The Court acceded to the applicant's request to vary the costs award, allowing payment from the proceeds of sale of the D Town home.

The Court ordered that the costs award be varied to permit the wife to pay the sum of $16,847 from the proceeds of sale of the D Town home. Further directions were given for the parties to file and serve any additional affidavit material and submissions by 4:00 pm on 18 December 2020, addressing whether the sale of the D Town property should be by private treaty or public auction, the timeframe for such sale, and any other issues raised by the respondent's written submissions. These matters were to be determined on the papers.

Orders