BLANCO & BLANCO

[2018] FCCA 3977

FEDERAL CIRCUIT COURT OF AUSTRALIA

BLANCO & BLANCO [2018] FCCA 3977

Catchwords:
FAMILY LAW – Property – arbitration – application for costs.

Legislation:

Family Law Act 1975 (Cth), s.13F

Cases cited:

Allesch v Maunz [2000] HCA 40

Applicant: MR BLANCO

Respondent: MS BLANCO

File Number: WOC 88 of 2018

Judgment of: Judge Harman

Hearing date: 14 November 2018

Date of Last Submission: 14 November 2018

Delivered at: Parramatta

Delivered on: 14 November 2018

REPRESENTATION

Solicitors for the Applicant: Mr McEwan by telephone

No Appearance for the Respondent

ORDERS

1. Make Orders in accordance with Minute of Order marked Exhibit A.

2. Dispense with any rule, regulation or requirement that would preclude an oral Application by the husband for Orders in the arbitration and to advance the conduct of arbitration.

3. Reserve the costs of the Applicant husband with respect to today’s appearance, such costs to be determined upon registration of an Arbitral Award or such other Order as occurs.

4. THE COURT NOTES that the family law regulations create certain requirements for the parties and with respect to same:

   (a)Regulation 67F provides the form and content of an arbitration agreement although the execution of an arbitration agreement prior to arbitration is not mandatory as the regulation provides that the parties “may” make an agreement in relation to the arbitration and absent such agreement the arbitrator would have authority to determine all aspects of the conduct of arbitration;

   (b)The arbitrator is required by regulation 67G to give notice to both parties of the date and place fixed for arbitration and provided such notice is given, it is permissible for the arbitration to proceed on an undefended basis.

5. The matter is adjourned for further mention and directions to 12 March 2019 at 12noon.

6. Leave is granted to the Applicant and their legal representative to appear by telephone on the adjourned date on the following terms and conditions:

   (a)The party seeking to attend by telephone shall confirm with my Associate by email the name and telephone number of the person appearing;

   (b)Such notification is to be received not less than three (3) working days prior to the adjourned date;

   (c)No change can be made to the contact name or telephone number after this time.

IT IS NOTED that publication of this judgment under the pseudonym Blanco & Blanco is approved pursuant to s.121(9)(g) of the Family Law Act 1975 (Cth).

EXHIBIT A

1. Within seven (7) days from the date of these orders the parties are to agree upon the identity of the Arbitrator to be appointed to hear this matter.

2. If the parties do not agree upon the identity of the Arbitrator pursuant to order 1, then within a further seven (7) days the Applicant Husband's lawyer is to apply in writing to AIFLAM to request the appointment of an Arbitrator. Such appointed Arbitrator to be the person to hear this matter. 

3. Within fourteen (14) days from the date of the appointment of an Arbitrator by AIFLAM the parties shall:

   (a)fix a date(s) and place for the Arbitration to be heard, such date(s) to be suitable to the Arbitrator; and

   (b)if the parties are unable to agree upon such date(s) or place for the arbitration; then such date and place shall be fixed by the Arbitrator, and

   (c)the date for Arbitration to be no later than seventy (70) days from the date of appointment of the Arbitrator; and

   (d)attend at such times, dates and place as nominated by the Arbitrator for the purpose of conducting and completing the Arbitration hearing; and

   (e)do all things, sign all documents and give all consents, authorities and instructions as are necessary to retain that Arbitrator and execute an Arbitration Agreement if required to do so by the Arbitrator.

4. Not less than 14 days before the date fixed for the Arbitration, the Applicant Husband shall pay the fees charged by the Arbitrator, the fees for hiring the arbitration room and fees charged for any recording equipment (hereafter referred to as 'the Arbitration Costs').

5. The Arbitration Costs are to be met equally by the Parties, and in consideration of order 5 above, one half of the Arbitration Costs paid by the Applicant Husband shall be reimbursed by the Respondent Wife to the Applicant Husband following the Arbitration of the matter and out of any adjustment or property settlement.

6. Not less than 14 days before the date fixed for the Arbitration the parties must provide the Arbitrator with:

   (a)a copy of all documents that they propose to rely upon at Arbitration;

   (b)a chronology of events;

   (c)a balance sheet containing assets and liabilities that are agreed; and those that are in dispute;

   (d)any other documents as directed by the Arbitrator.

7. That leave be granted for either party to issue appropriate Subpoena in an Arbitration relevant to the issues in dispute, and such subpoena to be made returnable not less than 28 days prior to the date fixed for Arbitration;

8. The costs of the Applicant sought pursuant to an Application for Costs filed in this matter, and pursuant to any prior orders are matters for determination by the Arbitrator following conclusion of the Arbitration.

FEDERAL CIRCUIT COURT
OF AUSTRALIA
AT PARRAMATTA

WOC 88 of 2018

MR BLANCO

Applicant

And

MS BLANCO

Respondent

REASONS FOR JUDGMENT

1. These proceedings come before the Court today by way of an Application in an Arbitration. 

2. The parties to the proceedings are Mr Blanco, the applicant, and Ms Blanco, the respondent. 

3. Ms Blanco does not appear today.  I am satisfied that Ms Blanco has notice of today’s proceedings.  That arises as:

   a)The matter was last before the Court 22 October 2018 when Ms Blanco appeared in person and by telephone;

   b)Today’s date was fixed by order made that day and whilst Ms Blanco was participating;

   c)The above order facilitated the parties’ participation in today’s Court event by telephone attendance;

   d)The matter has proceeded on at least the last three Court events by such telephone attendance regime.  Accordingly, Ms Blanco would be entirely familiar with that required of her and the logistics of how to participate today. 

4. In light of the above, I am satisfied that the matter can appropriately proceed in Ms Blanco’s absence today, she having been given due process, reasonable notice and a reasonable opportunity to participate.  As the High Court discussed in Allesch v Maunz [2000] HCA 40, what is required to afford due process is not a fixed or arbitrary test.  It is dependent upon the facts and circumstances of the case. 

5. In this case, the matter has had an inordinate number of Court events, certainly by reference to the dispute and that which is addressed by the dispute.  The matter has been before the Court on approximately six, if not seven, occasions this year, the majority of which have been seeking to guide the matter towards finalisation of an arbitration.

6. On 15 May, 2018 an order was made by consent referring the totality of the Part VIII proceedings to arbitration.  At the time of that referral, the proceedings were adjourned to facilitate arbitration, a period that should have been more than sufficient to enable arbitration to proceed if all that was required to be done had been done in a timely fashion. 

7. I am conscious that Mr Blanco has prepared his case and that he has been, for some little time, ready to proceed with arbitration.  On the last occasion that the proceedings were before the Court, Ms Blanco raised certain issues regarding her readiness to proceed and her desire to obtain further discovery and disclosure.  It would appear from that which is filed and considered, that more than abundant disclosure has already occurred.

8. At the last Court event, Ms Blanco had raised some concern and issue with respect to the arbitrator who had previously been agreed between the parties.  On an earlier occasion, 20 July, 2018, it had been noted that the parties had appointed a specific arbitrator.  However, it is now apparent that the parties have never executed an arbitration agreement.  Notwithstanding, dates had, appropriately, been fixed by the previously agreed arbitrator.  The arbitration was not able to proceed on the allocated dates due to the various difficulties apprehended in the matter and partially addressed above.

9. When the matter was last before the Court, 22 October 2018, the parties were directed to do certain things.  Importantly, for today’s purposes, the parties were directed to confer with each other regarding payment of arbitrators’ fees, and any further orders necessary to enable the arbitration to proceed to conclusion as expeditiously as possible.  Costs of the applicant were reserved, as they will be again reserved today.

10. In relation to the advancement of the matter, it is now common ground that the previously agreed arbitrator either cannot or should not be appointed as the arbitrator.  That is no criticism whatsoever of the arbitrator.  It is, on the part of the applicant husband, a pragmatic concession to simply move the matter forward in circumstances whereby Ms Blanco is strident in her insistence that a different arbitrator be appointed.  I make clear that the previously agreed arbitrator is more than abundantly appropriate and qualified to address this dispute.

11. The application that is before the Court today is embodied within exhibit A, a minute of proposed orders.  That minute proposes that an arbitrator be appointed by AIFLAM.  Indeed the original order referring the proceedings to arbitration had provided a default, that in the event that the parties could not agree on an arbitrator, that the president of AIFLAM could be requested, by either party, to make an appointment.  

12. On one view, as the parties had previously agreed upon an arbitrator, it could be argued that the order made, 15 May 2018, is spent.  In any event, it is indicated in accordance with correspondence, exhibit B, that whilst the husband has sought to approach the president of AIFLAM for the appointment of an arbitrator, Ms Blanco has indicated to the president that she does not consent to that path being taken, thus frustrating appointment in accordance with the order, whether operative or not.

13. It is for abundant caution that I propose to make orders as sought which permit the applicant alone to approach AIFLAM to request the appointment of an arbitrator.  That will then overcome the impasse that has been reached.  I propose to make the balance of orders that are sought by exhibit A, including with respect to investment of the arbitrator with the power to fix the date and place of arbitration and various other matters relevant to the arbitration. 

14. The advancement of this matter to arbitration would appear to have been wholly frustrated, to date, by Ms Blanco’s refusal to do that required.  Accordingly, such prescriptive orders are not only appropriate, but necessary. 

15. I am satisfied that the Court has jurisdiction to make such orders under section 13F of the Family Law Act 1975 which provides:

    A court that has jurisdiction under this Act may, on application by a party to relevant property or financial arbitration, make orders the court thinks appropriate to facilitate the effective conduct of the arbitration.

16. I am conscious that regulation 67E provides that such an application be made in accordance with form 7.  The regulation is somewhat prescriptive, providing that the application must be made in accordance with that form.  I am satisfied that this is an unnecessary burden and expense to impose upon the husband, who has done what is required in accordance with orders made by this Court in filing a minute making clear that which is sought.  Accordingly, an order will be made dispensing with any further or formal requirement that would preclude the matter being dealt with today.

17. The regulation otherwise provides, to avoid any doubt, that an application for procedural orders in the arbitration can be made by the parties jointly or by one party to the arbitration alone.  In that regard, I am satisfied that there is jurisdiction to make the orders sought.  I am satisfied that the orders that are sought are entirely appropriate. 

18. I am satisfied that the orders that are sought are necessary.  That includes the orders sought regarding payment of the arbitrator.  The applicant advances a proposal and submits to an order that he will, at first instance, meet all costs with respect to the arbitration, subject to an order, which would bind the parties, that the costs will ultimately be met equally by the parties, and, thus, the husband is to be reimbursed by the wife.

19. I am not concerned that these orders infringe upon the role of the arbitrator.  These are orders to facilitate the arbitration when the parties cannot agree on such matters and when such disagreement impedes the arbitration and the arbitrator.  These orders do not, in any way, deal with, affect upon, or determine the rights and interests in property of these parties, nor the manner in which the arbitration will be conducted.  These orders are not an exercise of Part VIII jurisdiction, that which has been referred in its totality to the arbitrator.

20. For these reasons, I am satisfied that orders can and should be made as follows.

I certify that the preceding twenty (20) paragraphs are a true copy of the reasons for judgment of Judge Harman

Date: 5 March 2019