Catchwords: FAMILY LAW – Arbitration – review of arbitral awards – consideration of the circumstances in which the Court should review an arbitral award – principles applicable to the review of arbitral awards – consideration of whether the Arbitrator’s exercise of discretion was so unreasonable or plainly unjust as to constitute an error of law – consideration of whether the Arbitrator’s reasons were adequate – consideration of whether the Arbitrator’s costs award was made on the basis of errors of law comprising errors of principle and/or failure to give reasons - costs of the review – conduct of the parties to the proceedings – consideration of whether a party to the proceedings has been wholly unsuccessful.
That the application for review of arbitral awards pursuant to s.13J Family Law Act 1975 filed 17 May, 2019 be dismissed.
That the application to set aside arbitral awards pursuant to s.13K Family Law Act 1975 filed 17 May, 2019 be dismissed.
That Ms Blanco pay the costs of Mr Blanco, with respect to the determination of the above applications, such costs being fixed in the sum of $9,674 and to be a charge upon Ms Blanco’s interest in the property C Street, Town D in the State of New South Wales and to be paid to by Ms Blanco simultaneous with payment by Ms Blanco to Mr Blanco of the sum required to be paid pursuant to clause 5 of the arbitral award 12 April, 2019…
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.
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Details
AGLC
BLANCO & BLANCO (No.2) [2019] FCCA 2458
Case
[2019] FCCA 2458
Decision Date
CaseChat Overview and Summary
In the matter of *Blanco & Blanco (No.2)*, Judge Harman of the Federal Circuit and Family Court of Australia considered an application by Ms Blanco to review and set aside arbitral awards made in family law proceedings between herself and Mr Blanco. The dispute concerned the review of an Arbitrator's decision, specifically focusing on the circumstances under which an arbitral award could be reviewed and whether the Arbitrator's exercise of discretion, reasons, and costs award were legally sound.
The court was required to determine whether the Arbitrator's exercise of discretion was so unreasonable or plainly unjust as to constitute an error of law, whether the Arbitrator's reasons for the award were adequate, and whether the costs award was made on the basis of errors of law, including errors of principle or a failure to provide reasons. The court also considered the costs of the review application itself, taking into account the conduct of the parties and whether any party had been wholly unsuccessful.
Judge Harman dismissed both the application for review of the arbitral awards pursuant to s 13J of the *Family Law Act 1975* and the application to set aside the arbitral awards pursuant to s 13K of the *Family Law Act 1975*. The court found no grounds to interfere with the Arbitrator's decision. Consequently, Ms Blanco was ordered to pay Mr Blanco's costs for the determination of these applications, fixed at $9,674. These costs were to be secured as a charge upon Ms Blanco's interest in a specified property and payable either simultaneously with a payment required by the arbitral award or from her portion of the proceeds of sale of that property, whichever occurred first. All related issues were removed from the court's list of cases awaiting hearing.
Orders
Orders of the court
1.
That the application for review of arbitral awards pursuant to s.13J Family Law Act 1975 filed 17 May, 2019 be dismissed.
2.
That the application to set aside arbitral awards pursuant to s.13K Family Law Act 1975 filed 17 May, 2019 be dismissed.
3.
That Ms Blanco pay the costs of Mr Blanco, with respect to the determination of the above applications, such costs being fixed in the sum of $9,674 and to be a charge upon Ms Blanco’s interest in the property C Street, Town D in the State of New South Wales and to be paid to by Ms Blanco simultaneous with payment by Ms Blanco to Mr Blanco of the sum required to be paid pursuant to clause 5 of the arbitral award 12 April, 2019 or paid from Ms Blanco’s portion of the proceeds of sale of that property (clause 10(e)(ii) of the arbitral award) whichever occurs first.
4.
Remove all issues from the list of cases awaiting hearing.