Belding & Belding

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.