Griffiths & Griffiths

[2022] FedCFamC1F 219

FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA

(DIVISION 1)

Griffiths & Griffiths [2022] FedCFamC1F 219

File number(s):

PAC 3392 of 2020

Judgment of:

WILSON J

Date of judgment:

6 May 2022

Catchwords:

FAMILY LAW – NATIONAL ARBITRATION LIST –sufficiency of arbitral reasons – applicable principles about adequacy of reasons examined in detail.

FAMILY LAW – ARBITRATION – procedural fairness – content of obligation to afford procedural fairness by an arbitrator – applicable principles examined in detail.

FAMILY LAW – ARBITRATION – overruling decision in Braddon & Braddon [2018] FCCA 1845.

Legislation:

Family Law Act 1975 (Cth) ss 13E, 13J(2)(a)-(b), 13K, 79(1)(c) and 79(2)

Family Law Regulations 1984 r 67P

Cases cited:

AK v Western Australia (2008) 232 CLR 438
Alcan (NT) Alumina Pty Ltd v Commissioner of Territory Revenue (2009) 239 CLR 27
Allesch v Maunz (2000) 203 CLR 172
Australian Railways Union v Victorian Railways Commissioners (1930) 44 CLR 319
AYX16 v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2020] FCAFC 99
Braddon & Braddon [2018] FCCA 1845
Cameron v Cole (1944) 68 CLR 571
Cantoni & Cantoni [2022] FedCFamC1A 11
Cantwell v Beitzel (2014) 87 NSWLR 103
Chu Kheng Lim v Minister for Immigration (1992) 176 CLR 1
Commissioner of Police v Tanos (1958) 98 CLR 383
Concrete Pty Ltd v Parramatta Design & Developments Pty Ltd (2006) 229 CLR 577
Construction, Forestry, Maritime, Mining and Energy Union and Others v Australian Building And Construction Commissioner (2020) 282 FCR 1
Cooper Brooks (Wollongong) Pty Ltd v Commissioner of Taxation (1981) 147 CLR 297
Cooper v Wandsworth District Board of Works [1863] 143 ER 414
De Winter v De Winter (1979) 4 Fam LR 583
Delta Properties Pty Ltd v Brisbane City Council (1955) 95 CLR 11
Dick v Piller [1943] KB 497
Durayappah v Fernando [1967] 2 AC 337
FAI Insurance v Winneke (1982) 151 CLR 342
Fleming v R (1998) 197 CLR 250
Francis v Todd [2011] WASC 185
Goh v Ren (2020) 61 Fam LR 508
Goodrich Aerospace Pty Ltd v Arsic (2006) 66 NSWLR 186
Grimshaw v Dunbar [1953] 1 QB 408
Heatley v Tasmanian Racing & Gaming Commission (1977) 137 CLR 487
Housing Commission (NSW) v Tatmar Pastoral Co Pty Ltd [1983] 3 NSWLR 378
Hunter Transport Accident Commission [2005] VSCA 1
International Finance Trust Company Ltd v New South Wales Crime Commission (2009) 240 CLR 319
J v Lieschke (1987) 162 CLR 447
Jones v National Coal Board [1957] 2 QB 55
K & S Lake City Freighters Pty Ltd v Gordon & Gotch Ltd (1985) 157 CLR 309
Kioa v West (1985) 159 CLR 550
Minister for Immigration and Boarder Protection v WZARH (2015) 256 CLR 326
Minister for Immigration and Ethnic Affairs v Wu Shan Liang (1996) 185 CLR 259
Minister for Lands (NSW) v Jeremias (1917) 23 CLR 322
Mobil Oil Australia Pty Ltd v Federal Commissioner of Taxation (1963) 113 CLR 475
National Companies & Securities Commission v News Corporation Ltd (1984) 156 CLR 296
Pettitt v Dunkley [1971] NSWLR 376
Police Federation of Australia v Nixon (2011) 198 FCR 267
Project Blue Sky Inc v Australian Broadcasting Authority (1998) 194 CLR 355
R v Commonwealth Conciliation and Arbitration Commission; ex parte Angliss Group (1969) 122 CLR 546
R v Ludeke; ex parte Customs Officers’ Association of Australia (1985) 155 CLR 513
R v Moore; ex parte Victoria (1977) 140 CLR 92
Raguz v Sullivan (2000) 50 NSWLR 236
Re Brook, Badart & Delcornyn [1864] 143 ER 1184
Re JRL, ex parte CJL (1986) 161 CLR 342
Re Minister for Immigration and Multicultural Affairs; ex parte Lam (2003) 214 CLR 1
Resi Corporation v Munzer [2016] SASCFC 15
Roy Morgan Research Centre Pty Ltd v Commissioner of State Revenue (2001) 207 CLR 72
Russell v Duke of Norfolk [1949] 1 All ER 109
Salemi v MacKellar (No 2) (1977) 137 CLR 396
Shah & Akbarali v Barnet London Borough Council [1983] 2 AC 309
Southwest Water Authority v Rumble’s [1985] AC 609
Stead v State Government Insurance Commission (1986) 161 CLR 141
Stead v State Government Insurance Commission (1986) 161 CLR 141
Sun Alliance Insurance Ltd v Massoud [1989] VR 8
Sydney West Corporations Ltd v Aqua Clear Technology Pty Ltd [1996] NSWSC 640
SZBEL v Minister for Immigration and Multicultural and Indigenous Affairs (2006) 228 CLR 152
Taylor v Taylor (1979) 143 CLR 1
The Commonwealth v Baume (1905) 2 CLR 405
Toronto Suburban Railway Co v Toronto Corporation [1915] AC 590
Transport Accident Commission v Kamel [2011] VSCA 110
Twist v Randwick Municipal Council (1976) 136 CLR 106
Westport Insurance Corp v Gordian Runoff Ltd (2011) 244 CLR 239
Bremer Handelsgesellschaft mbH v Westzucker GmbH (No 2) (1981) Lloyd's Rep. 130
Wright v Rebane (2021) 64 Fam LR 287

Journal Articles

Dr Josh Wilson QC, ‘Adequate Arbitral Reasons After Westport – Has the Tension Been Resolved to Any Real Degree’ (2015) 24 The Arbitrator & Mediator 9

Division:

Division 1 First Instance

Number of paragraphs:

64

Date of last order:

7 April 2022

Place:

Melbourne

Counsel for the Applicant:

Bob Rosic

Solicitor for the Applicant:

John Hall Lawyers

Counsel for the Applicant:

Mr D. Blackah

Solicitor for the Respondent:

Watts Mccray (NSW) Pty Ltd

ORDERS

PAC 3392 of 2020

FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 1)

BETWEEN:

MR GRIFFITHS

Applicant

AND:

MS GRIFFITHS

Respondent

ORDER MADE BY:	WILSON J
DATE OF ORDER:	6 MAY 2022

THE COURT ORDERS THAT:

1.The respondent’s review application filed on 10 January 2022 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 Griffiths & Griffiths is approved pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth).

REASONS FOR JUDGMENT

WILSON J

INTRODUCTION

1. Following the publication of the award in this arbitration, the wife applied under s 13J of the Family Law Act for the review of the arbitration. She did not posit questions of law, as s 13J requires, and instead advanced 10 grounds of review with submissions in support. Her essential contentions were –

   (a)the alleged absence of a source of power to make certain orders by the arbitrator;

   (b)the alleged absence of findings and reasons;

   (c)the alleged inadequacy of the reasons given by the arbitrator; and

   (d)an alleged denial of procedural fairness.

2. The wife did not formulate any contentions on whether the award should be varied, affirmed or reversed.

3. For the reasons that follow –

   (a)the wife’s review application is dismissed; and

   (b)the parties’ costs applications are addressed in separate reasons for judgment.

   RELEVANT FACTUAL SETTING

4. This arbitration is not emblematic of the manner in which parties should behave when participating in family law arbitration as an extra-curial dispute resolution process.

5. When I ordered by consent on 22 February 2021 that the arbitrator was appointed under s 13E of the Family Law Act I made a mandatory stipulation in paragraph three of those orders that the award had to be published by no later than 22 July 2021.  That order was ignored, by whom I cannot say.  The date 22 July 2021 came and went without the publishing of the arbitral award.  When the parties appeared before me on 20 October 2021 the award still remained unpublished.  On 8 November 2021 the award remained unpublished so I directed the proceeding to be listed before me on 3 December 2021.

6. Two days after the appearance before me on 8 November 2021 the arbitrator published his award.  In this case almost nine months elapsed from the entry of this case in the National Arbitration List (“NAL”), the hearing of the arbitration and the eventual publication of the arbitral award.  In the usual course of events I allow no more than four months to elapse between the entry of a case into the NAL, the hearing before the arbitrator and the publication of the award.  That requirement is standard, although not immutable.  It is the norm.  Most practitioners and arbitrators in cases in the NAL not only understand the rationale for that usual requirement but actively cooperate with the Court in the achievement of it as one of the main imperatives of the NAL, namely the timely and cost effective determination of cases before arbitrators.  The lapse in this case of more than double the customary time is to be condemned.  That is not how arbitrations in the NAL should be conducted. These reasons should serve as the Court’s disdain for what occurred in this case.

7. After publication of the award on 10 November 2021, the applicant in the arbitration, that is to say the husband, applied to register the award on 17 November 2021. By consent, orders were made by me on 3 December 2021. Pursuant to paragraph one of those orders I registered the arbitral award under s 13E of the Family Law Act thereby conferring on the award the status of a decree of this Court.

8. Six days later the wife applied to review the arbitral award in reliance upon s 13J of the Family Law Act.  In her review application the wife sought an array of orders, namely –

   1.That pursuant to section 13J of the Family Law Act the Arbitral Award of Mr C dated 10 November 2021 and registered on 3 December 2021be reviewed.

   2.That the s 79 proceedings bearing case number PAC3392/2020 be remitted for hearing before a Judge.

   3.That the husband pay the costs of the wife's for this review.

   4.That in the event an Order is not entered in accordance with Order 2 the Wife be granted a costs certificate pursuant to section 9 of the Federal Proceedings (Costs) Act 1981 in respect of the costs incurred in relation to the Review.

   5.That depending on the Orders made, the Wife be granted a costs certificate pursuant to s 8 of the Federal Proceedings (Costs) Act 1981 in respect of any costs on any rehearing.[1]

   [1]  As stated in original document.

   SECTION 13J OF THE FAMILY LAW ACT

9. The arbitration regime embedded in the Family Law Act does not make provision for appeal for error of law. Its provisions are quite different to provisions in relation to appeals from arbitrators under state Commercial Arbitration Acts or the federal International ArbitrationAct.  Under the Family Law Act a person aggrieved by the decision of an arbitrator may invoke remedies under s 13J or under s 13K. Those two sections contain fundamentally different provisions. They are not interchangeable, as I canvassed in Wright v Rebane.[2]

   [2] Wright & Rebane (2021) 64 Fam LR 287.

10. In this post-registration application, the wife purported to invoke s 13J. That section enables a party to a registered award to “apply for review of the arbitral award on questions of law”. Under s 13J(1) of the Family Law Act, on an application for the review of an award, the judge (more properly, the judge-in-charge of the National Arbitration List, that is to say, me) may –  

    (a)determine all “questions of law arising in relation to the arbitration”;[3] and

    (b)make such decrees as the judge considers appropriate “including a decree affirming, reversing or varying the award”.[4]

    [3] Section 13J(2)(a).

    [4] Section 13J(2)(b).

11. The use of the word “including” in s 13J(2)(b) of the Family Law Act indicates that the making of a decree “affirming, reversing or varying the award” is not the only order capable of being made for which power is conferred. In fact, s 13J(2)(b) provides that the judge hearing the review application is empowered by s 13J(2)(b) to make such a decree “as the judge thinks appropriate”.[5]

    [5] It must not be overlooked that many decades ago the High Court in De Winter v De Winter (1979) 4 Fam LR 583 held that the Court’s powers under the Family Law Act are “extraordinarily wide”.

12. Both ss 13J(1) and 13J(2) speak of “questions of law” and the determination of those questions of law.  Having regard to the fact that the arbitration provisions of the Family Law Act do not contain a generic provision in relation to appeals from arbitrators for error of law, the double use in s 13J of the phrase “questions of law” reveals a legislative intendment that on an application to review an arbitrator’s award, well-articulated and legally maintainable “questions of law” must be formulated by the party invoking the review.  To my mind, a question of law will not be some imprecisely formulated generic statement of abstract principle, whether or not tailored to the facts of the instant case.  For example, to meet the appellation of “questions of law” in my view it will be insufficient for the review applicant to postulate some generic principle of law, whether or not expressed as a question, inviting examination of the adequacy of the arbitrator’s reasons in the overall. Conversely, the question of law would be properly posed if, on that illustration, the review applicant asked whether one or more specific paragraphs of the arbitrator’s reasons were adequate in relation to the determination of a specific contested factual issue. Intrinsically, the “questions of law” should be expressed as a question. As I have said, s 13J(2) twice refers to “questions of law”. Questions of fact may not suffice unless the arbitrator’s treatment of some issue of fact somehow invokes the principle of law rendering a perverse finding of fact a question of law.

13. In this case the wife relied on 21 separate paragraphs of a document entitled “wife’s written submissions in support of application in arbitration for review of arbitral award filed on 9 December 2021”. The wife’s application dated 8 December 2021 for the review of the arbitral award recorded five orders the wife sought but nowhere did she make any endeavour to comply with s 13J by articulating the “questions of law” she was agitating.

14. The wife’s submissions on this review application were elaborate.  They were prepared by counsel who appeared for the wife during the arbitral hearing and they were arranged under various headings namely, “grounds of review”, then grounds bearing certain numbers with such a heading such as “Grounds 2, 6, 8 and 9 – Absence of findings and reasons”, as well as “Ground 10 – Adequacy of reasons”, “Grounds 3, 4, and 5 – Procedural Fairness” and “Ground 1 –Source of Power – Order 12 Notation 13”.

15. Nowhere in that document were “questions of law” posed in precise terms. Instead, the document proceeded with a narrative of criticisms of the manner in which the arbitrator addressed certain matters, including factual matters. In several instances, counsel for the wife attacked notations made by the arbitrator. Notations have no status in the award. They are not orders. In many instances they are discursive statements which are said to explain why the order was made. The reasons themselves should explain that. I take the view that notations, irrespective of howsoever widely they may be used, do not embody a command to the parties. They are commentary and they have no place in judicial orders or even arbitral orders. That said, their inclusion did not amount to postulating one or more “questions of law” for the purposes of s 13J of the Family Law Act. In other words, from the wording, form or content of the notations in this arbitral award it is not possible to divine anything that enlivens one or more “questions of law”.  To the extent that the wife submits they do, I reject her contentions in that regard.

16. Further, under a review application pursuant to s 13J of the Family Law Act, the Court has power to “determine all questions of law arising in relation to the arbitration” and “make such decrees” as to the judge seem appropriate “including” (I interpolate, but not limited to) “a decree affirming, reversing or varying the award”.

17. Nowhere did the wife as review applicant postulate a form of orders representing the decrees which she propounded and nowhere did she agitate which arbitral orders she sought affirmed, reversed or varied based on the determination of the question of law she wanted determined.

18. Instead the wife advanced a collection of grounds of review, some bunched into groups allegedly impugning the adequacy of the arbitrator’s reasons with others asserting procedural unfairness by the arbitrator.  The Family Law Act, the Family Law Regulations and the Federal Circuit and Family Court of Australia (Family Law) Rules 2021 do not make provision for “grounds of review” for a review application under s 13J of the Family Law Act. The most important matter arising from s 13J, overlooked on this review application, was the requirement for a statement of the “questions of law arising in relation to the arbitration”, in terms provided for in s 13J(2)(a) of the Family Law Act.

    THE ASSERTED GROUNDS OF REVIEW 

19. Each of the 10 grounds of review were expressed to be premised on arbitral error.  It is utile to record how each was expressed –

    1.The arbitrator erred by making Order 12 and Notation 13 of the Award dated 10 November 2021 (“the award”) requiring the appointment of [Ms D] as a trustee of the [Griffiths Family Trust], with the conferral of power to allocate to specified beneficiaries of the trust benefits in relation to the [E Loyalty Program] with absolute discretion in circumstances where this order falls outside the grant of power pursuant to Section 79 (2) of the Family Law Act.

    2.The arbitrator erred in making Order 12 and Notation 13 of the award in the absence of findings and reasons as required by Regulation 67P of the Family Law Regulations 1984.

    3.The arbitrator erred in making Order 12 and Notation 13 of the award in the absence of evidence from the person named in the order as “[Ms D]” and further in the absence of evidence as to how this power may be exercised by “[Ms D]” and as to what benefit either party are likely to receive from this matrimonial asset when [Ms D] is granted absolute discretion conferred upon her by this Order.

    4.The arbitrator failed to provide the parties procedural fairness when making Order 12 and Notation 13 of the award in the absence of evidence from [Ms D] resulting in the parties not being afforded the opportunity of cross examining [Ms D] as to how she would exercise this power pursuant to her absolute discretion if she were to accept the appointment.

    5.The arbitrator failed to provide [Ms D] who is referred to in Order 12 and Notation 13 of the Award procedural fairness prior to making the Order.

    6.The arbitrator erred in failing to provide findings and reasons as required by Regulation 67P of the Family Law Regulations 1984 when adding back the sums of $120,000 and $80,527.

    7.The arbitrator erred in double counting legal fees paid by the appellant as an add back by also including funds in bank accounts that were the source of those payments.

    8.The arbitrator erred in failing to provide findings and reasons as required by Regulation 67P of the Family Law Regulations 1984 as to the arbitrator not treating the sum expended by the Respondent in payment of Legal fees as an add back.

    9.The arbitrator erred in failing to provide findings and reasons as required by Regulation 67P of the Family Law Regulations 1984 as to why funds disposed of by the respondent were not treated as add backs which included:

    (i)The respondent’s receipt of $95,000 from [B Pty Ltd] as repayment of a Division 7A loan after separation sourced from funds held by the company in a second non-operating account and accumulated before separation.

    (ii)The respondent’s receipt of $55,000 after separation from [B Pty Ltd] sourced from funds held by the company in a second non-operating account and accumulated before separation.

    (iii)The respondent payments to the party’s adult children after separation totalling $63,229 sourced from funds held by the company in a second non-operating account and accumulated before separation.

    10.The arbitrator erred in failing to provide adequate reasoning as to the assessment of the appellant’s Section 79 (4) contributions including the contributions as primary care giver to the party’s now adult children, homemaker contributions, contributions working casually and the significant gifts from the appellant’s father which included;

    (i)The property at [K Street, Suburb L],

    (ii)$60,000 of the $91,500 purchase price of [F Street, Suburb G] property in 1987

    (iii)The sum of $300,000 received from the appellant’s father and utilised for renovations of the [F Street, Suburb G] property which was sold and the proceeds were utilised to purchase the [Suburb M] property.

    (iv)Funds to purchase [H Street] in 1995.

1. It is necessary to take each asserted ground of review separately.

   GROUND OF REVIEW 1

2. In reliance upon order 11 and notation 13 of the award, the review applicant asserted that the arbitrator erred by requiring a named person to be appointed as a trustee. In the final stanza of the ground, the wife asserted that order 12 (and inferentially notation 13) fell “outside of the grant of power” pursuant to s 79(2) of the Family Law Act. No particulars were given of that assertion explaining why it was said that the order expressed in order 12 was allegedly in excess of the powers reposed in s 79 of the Family Law Act, still less did the review applicant formulate one or more questions of law that allegedly arose from paragraph 12 of the arbitrator’s orders.

3. In support of criticisms advanced by the wife about order 12 and notation 13, the wife made assertions over six paragraphs of submissions. They were not easy to follow. Some were uncontroversial submissions about the ambit of s 79(1) of the Family Law Act, the definition of “property” and the proscription in s 79(2) against making a property settlement order unless satisfied that it is just and equitable to do so. Additionally, counsel for the wife urged upon me the following submissions –

   (a)“in effect the arbitrator did not make an order altering the property interests of the parties in respect of” the E Loyalty Program;

   (b)“it is not possible for the arbitrator on the basis of evidence to have considered that the orders provide a just and equitable outcome in respect of the division between the parties”; and

   (c)“the utilisation of s 79(1)(c) in making order 12 and notation 13 was outside the grant of power pursuant to that section and offends the principles of s 79(2)”.

4. Aside from there being no questions of law posed by any of those submissions or ground 1 itself, those assertions represented little more than the wife’s dissatisfaction with the factual findings made by the arbitrator.  They purport to invite a rehearing of the lis pendens between the parties to, presumably, enable the wife to endeavour to secure a different result or one more advantageous to her. In any event, I do not agree that the arbitrator did not make orders as contemplated by s 79 nor do I agree that the arbitrator is to be taken to have not considered whether it was just and equitable to make orders altering the parties’ property interests. Further, I disagree with the submission that order 12 was beyond power. It must not be overlooked that the wife, had she been successful under ground 1 (assuming she succeeded in procuring a positive answer to some question of law posed by her) she nevertheless did not state what decree she sought, whether as to the affirmation, reversal or variation of the award, and if none of those, which.

5. Ground 1 fails.

   GROUNDS OF REVIEW 2, 6, 8 AND 9

6. The wife aggregated grounds of review 2, 6, 8 and 9 into one compendious ground, the submissions on which being headed “absence of findings and reasons”.

7. While bunched together, grounds 2, 6, 8 and 9 addressed different issues.  It is necessary to record how each was cast.

   GROUND OF REVIEW 2

8. Under ground 2 the wife asserted that the arbitrator erred in making order 12 and notation 13 in the absence of findings and reasons as required by regulation 67P of the Family Law Regulations.

9. Under ground 6 the wife asserted that the arbitrator erred in failing to provide findings and reasons as required by regulation 67P of the Family Law Regulations when adding back the sums of $12,000 and $80,527.

10. Under ground 8 the wife asserted that the arbitrator erred in failing to provide findings and reasons as required by regulation 67P of the Family Law Regulations by not treating the sum expended by the respondent in the payment of legal fees as an add back.

11. Under ground 9 the wife asserted that the arbitrator erred in failing to provide findings and reasons as required by regulation 67P as to why the following funds were not treated as an add back –

    (a)$95,000 from B Pty Ltd;

    (b)$55,000 from B Pty Ltd; and

    (c)$63,229 from company funds paid to the parties’ adult children.

12. Self-evidently, the gravamen of each of those grounds was the wife’s assertion that the arbitrator failed to comply with regulation 67P(2)(a) – the requirement to provide reasons for the making of the award – and regulation 67P(2)(b) – the requirement for the arbitrator to provide findings of fact, referring to the evidence on which the findings are based.

13. In his written submissions, counsel for the wife identified the recent consideration given to the requirements of regulation 67P in Wright v Rebane.[6]  His written contentions about grounds 2, 6, 8 and 9 were expressed in the following terms –

    The crux of this review is that the arbitrator failed to reveal the process of reasoning which led the arbitrator to decide issues properly raised by the parties in this arbitration as a result of the absence of findings and reasons in respect of these issues [sic]. The failure to make findings, or to provide reasons or the provision of inadequate reasons by an arbitrator amounts to an error of law and enlivens the Court’s intervention pursuant to Section 13 J of the Family Court Act. In the absence of finding [sic] and reasons the award does not identify whether the Arbitrator used the correct legal reasoning or followed the correct legal procedures.

    [6] (2021) 64 Fam LR 287.

14. Before analysing whether the arbitrator discharged the obligations cast upon him by regulation 67P, it is utile to examine the precise terms of regulation 67P.  It scarcely needs pointing out that when searching for the proper construction of legislation or subordinate legislation, the task commences with an examination of the wording of the legislation itself, construed in context.[7]

    [7] Project Blue Sky Inc v Australian Broadcasting Authority (1998) 194 CLR 355, Cooper Brooks (Wollongong) Pty Ltd v Commissioner of Taxation (1981) 147 CLR 297, Alcan (NT) Alumina Pty Ltd v Commissioner of Territory Revenue (2009) 239 CLR 27, Taylor v Taylor (1979) 143 CLR 1, Southwest Water Authority v Rumble’s [1985] AC 609, Toronto Suburban Railway Co v Toronto Corporation [1915] AC 590, Minister for Lands (NSW) v Jeremias (1917) 23 CLR 322, K & S Lake City Freighters Pty Ltd v Gordon & Gotch Ltd (1985) 157 CLR 309, TheCommonwealth v Baume (1905) 2 CLR 405, Chu Kheng Lim v Minister for Immigration (1992) 176 CLR 1 and Construction, Forestry, Maritime, Mining andEnergy Union and Others v Australian Building And Construction Commissioner (2020) 282 FCR 1.

15. Regulation 67P(2)(a) requires the award to include a concise statement setting out the arbitrator’s reasons for making the award.  In this case the arbitrator’s reasons ran for 119 paragraphs over 29 pages.  Read as a whole, the arbitral reasons meet the description of “a concise statement setting out the arbitrator’s reasons for making the award”.  In addition to that stipulation, regulation 67P(2)(b) requires the award to include a concise statement setting out the arbitrator’s findings of fact in the matter, referring to the evidence on which the findings are based.

16. As a matter of general principle, when examining reasons (whether curial or administrative) those reasons must not be read with an eye keenly attuned to the existence of error as the High Court held in Minister for Immigration and Ethnic Affairs v Wu Shan Liang.[8]

    [8] (1996) 185 CLR 259.

17. Under ground 2 the wife contended that the order recorded in paragraph 12 of the arbitrator’s orders was not supported by factual findings.  Aside from that not being a question of law, on a proper examination of the arbitrator’s reasons, in my view sufficient foundation was in fact provided to support paragraph 12 of the arbitrator’s orders.

18. Paragraph 12 and notation 13 related to the E Loyalty Program, as has already been observed.  The arbitrator recorded that it was necessary to appoint the parties’ daughter Ms D as trustee for the limited purpose of administering the scheme.  In paragraph 5(a) of the arbitrator’s reasons the arbitrator referred to the orders sought by the applicant for the appointment of Ms D as trustee of the Griffiths Family Trust for limited purposes.  The wife opposed the orders sought by the husband.  The arbitrator was concerned in this arbitration with assets held by the trustee of the Griffiths Family Trust.  The arbitrator recorded that the husband sought orders for the transfer of his interests in that trust to the wife.  The arbitrator also recorded a finding that the parties’ assets included the E Loyalty Program the estimated value of which was $200,000.  The total asset pool as found was $7,636,593.  The arbitrator referred to the wife’s evidence that she established the trust (he did not say she settled the trust although I am willing to infer that it was the wife) using the sum of $307,000 received from the Public Trustee.  She deposed to the trustee of the trust advancing a loan of $100,000 to the husband to enable him to start his company B Pty Ltd.  The arbitrator also referred to the wife’s evidence where she deposed to the sum of $100,000 remaining outstanding.

19. In the upshot the arbitrator found that the parties’ entitlements were 50% to the husband and 50% to the wife.  The arbitrator applied that 50% division against a total asset pool of $7,636,593 conferring on each party the sum of $3,818,296.  That sum was derived by the husband retaining the assets recorded in paragraph 112 of the arbitrator’s reasons.  The arbitrator undertook the same exercise in relation to the wife in paragraph 113 of the arbitrator’s reasons.  So far as the order relating to the installation of the parties’ daughter as trustee of Griffiths Family Trust was concerned, paragraph 13 of the arbitrator’s orders recorded that the appointment of the daughter was for “providing for the parties to have equitable access to the [E Loyalty Program]” in circumstances where the husband was the appointor of the trust with power to remove the trustee.  It seemed perfectly plain that the husband, as appointor, had the ability to appoint a new trustee, possibly even one who would accede to the appointor’s directions in circumstances where the trust had been established by the wife and the husband owed money to the trustee so the arbitrator installed an adult as trustee thereby removing the risk associated with the husband’s control.

20. Returning to the precise terms of ground 2, in my view ground 2 was premised on a reading of the arbitrator’s reasons in a manner that the High Court says should not be done, namely with an eye keenly attuned to the existence of error.  In other words, the review applicant argued in ground 2 that the reasons underpinning paragraph 12 were not compliant with regulation 67P(2).  I do not agree.  I see now flaw of reasoning in paragraph 12.  Ground 2 did not raise one or more questions of law.  Ground must be dismissed.

    GROUND OF REVIEW 6

21. The asserted deficiency in the arbitrator’s reasons under this ground related to the add backs of $120,000 and $80,527.  Those two amounts were identified on page 18 of the arbitrator’s reasons under the heading “add backs”.  The amount of $120,000 was recorded in paragraph 49(a) and the amount of $80,527 was identified in paragraph 49(b).  Two accounts were relevant, the first being the J Town Offset Account in relation to the amount of $120,000 which the arbitrator found had been accessed by the wife on separation and the second, being the joint offset account in relation to the amount of $80,527, which the arbitrator found the wife received. In paragraph 113(f) of his reasons the arbitrator found that the wife was to retain each of those amounts as part of the 50% division of assets.  So far as $100,000 was concerned, in paragraph 29 of his reasons the arbitrator stated that in December 2019, after separation, the wife drew down that sum from the J Town Offset Account.  In paragraph 80 of the arbitrator’s reasons the arbitrator addressed the husband’s evidence in relation to the wife’s appropriation of $120,000 from two accounts.

22. The wife relied on the same submissions in relation to ground six as she did in relation to ground two.

23. Counsel for the wife did not submit that the findings in paragraph 49(a) or (b) were erroneously made.  Nor did he assert that having regard to contradictory evidence of the wife in relation to those two amounts the findings in paragraph 49(a) and (b) were not fairly open.  Instead, the wife advanced what seemed to me to be a largely academic discourse about the purpose of regulation 67P in relation to paragraphs 49(a) and (b).  It is significant that counsel for the wife did not refer me to the wife’s evidence pursuant to which it could be said that the findings in paragraph 49(a) and (b) were wrong.  The arbitrator relied on the husband’s evidence on point which the arbitrator accepted.

24. I take the view that ground 6 failed.  As with the ground of review earlier canvassed, in relation to ground 6 the wife did not make any submissions about the manner in which the award might have been affected if ground 6 had been made out.  Ground 6 failed so the point became largely academic.

    GROUND OF REVIEW 9

25. Before descending to the minutiae in relation to the three parts of ground 9 it is important to observe that under ground 9 no questions of law were postulated, nor was there any submission made about the consequence to the award that a successful outcome in relation to this ground would represent.  Under ground 9 the same criticisms were made about the award allegedly not complying with regulation 67P as were made in relation to other grounds.  It was said that regulation 67P was not observed in relation to –

    (a)the husband’s receipt of $95,000 from B Pty Ltd;

    (b)the husband’s receipt of $50,000 from B Pty Ltd; and

    (c)the husband’s payment to adult children totalling $63,229.

26. Nowhere in the material in support of this application did the wife take me to the evidence about the three amounts mentioned in the paragraph immediately above.  Counsel for the wife did not take me to any other evidence in the arbitration to which she said the arbitrator failed to have regard.  Based on the material before me, on the balance of probabilities I am not persuaded that the wife conducted her case before the arbitrator consistent with the assertions in ground 9(i), (ii) and (iii).  Ground 9 is devoid of merit.

    GROUNDS OF REVIEW 3, 4 & 5

27. Those three grounds were grouped together by the wife because, so she asserted, they bore a common characteristic in relation to order 12 and notation 13. It was said that, for various reasons, the wife was denied procedural fairness in that she was not given an opportunity of being heard before the order for the appointment of the daughter was made.

28. Before descending into each of the three grounds advanced in connection with the asserted denial of procedural fairness, counsel for the wife made certain submissions on the ambit of the procedural fairness obligation.  Among them were the following –

    (a)citing the High Court decision in Concrete Pty Ltd v Parramatta Design & Developments Pty Ltd[9] it was said that an assertion of a denial of procedural fairness is a challenge to the integrity of the curial process; and

    (b)citing the High Court decision in Stead v State Government Insurance Commission,[10] it was said that a denial of procedural fairness will not be appellable  unless it could be said that a different result would have been produced by a properly conducted trial.

    [9] (2006) 229 CLR 577.

    [10] (1986) 161 CLR 141.

29. Other observations must be made about the content of the duty to afford procedural fairness.  They include the following–

    (a)an obligation to give a person a fair opportunity of presenting his or her case arises from a long line of cases that include Cooper v Wandsworth District Board of Works[11] as well as Delta Properties Pty Ltd v Brisbane City Council[12] and Commissioner of Police v Tanos,[13] and the obligation attaches whether the authority is acting judicially or ministerially, as was held in Twist v Randwick Municipal Council;[14]

    [11] [1863] 143 ER 414.

    [12] (1955) 95 CLR 11.

    [13] (1958) 98 CLR 383, 396.

    [14] (1976) 136 CLR 106.

    (b)in Heatley v Tasmanian Racing & Gaming Commission, Barwick CJ held as follows –

    The doctrine as to natural justice is fundamentally that powers should not be used to affect rights either of property or a person without according natural justice.  It is the existence of a legal right which has excited the law to seek the qualification of the power which, being exercised, may affect the legal right.[15]

    [15] (1977) 137 CLR 487, 491.

    (c)Aickin J held that principles of natural justice apply whether the relevant authority is judicial or administrative;[16]

    [16] Ibid 498.

    (d)it is unduly restrictive to say that rules of natural justice only apply to proceedings that are judicial, quasi-judicial or where there is a duty to act judicially;[17]

    [17] Wilson J in FAI Insurance v Winneke (1982) 151 CLR 342, 390 quoting Salemi v MacKellar (No 2) (1977) 137 CLR 396, 419.

    (e)whether principles of natural justice must be applied and if so what those principles require, depends on the circumstances of each case;[18]

    [18] Durayappah v Fernando [1967] 2 AC 337, 350.

    (f)the requirements of natural justice vary according to the circumstances of the case;[19]

    [19] National Companies & Securities Commission v News Corporation Ltd (1984) 156 CLR 296. In support, the court relied on Russell v Duke of Norfolk [1949] 1 All ER 109, Mobil Oil Australia Pty Ltd v Federal Commissioner of Taxation (1963) 113 CLR 475 and R v Commonwealth Conciliation and Arbitration Commission; ex parte Angliss Group (1969) 122 CLR 546.

    (g)natural justice requires fairness in all the circumstances;[20]

    [20] National Companies Securities Commission v News Corporation Ltd (1984) 156 CLR 296, 312 (Gibbs CJ).

    (h)the nomenclature “procedural fairness” emerged in the decisions of R v Commonwealth Conciliation and Arbitration Commission; ex parte Angliss Group,[21] as well as in R v Ludeke; ex parte Customs Officers’ Association of Australia.[22]  There, Deane J held that “the Commission’s obligations under principles of natural justice correspond with those of a court or any other tribunal entrusted with the function of dealing with an issue in dispute between the parties to the particular proceedings before it”;[23]

    [21] (1969) 122 CLR 546, 552.

    [22] (1985) 155 CLR 513, 530 and J v Lieschke (1987) 162 CLR 447.

    [23] Deane J discussed Australian Railways Union v Victorian Railways Commissioners (1930) 44 CLR 319, 331 and R v Moore; ex parte Victoria (1977) 140 CLR 92, 100-102, 106-107.

    (i)natural justice and procedural fairness are to be equated;[24]

    [24] Kioa v West (1985) 159 CLR 550, 583 (Mason J).

    (j)the expression “natural justice” has been associated, perhaps too closely associated, with procedures followed by courts of law;[25]

    [25] Ibid.

    (k)the critical question in most cases is what does the duty to act fairly require in the circumstances of the particular case;[26]

    [26] Ibid 385.

    (l)in Stead v State Government Insurance Commission[27] the High Court upheld the observations of the English Court of Appeal in Jones v National Coal Board where Denning, Romer and Parker LJJ held as follows –

    [27] (1986) 161 CLR 141, 145.

    There is one thing to which everyone in this country is entitled, and that is a fair trial at which he can put his case properly before the judge…No cause is lost until the judge has found it so; and he cannot find it without a fair trial, nor can we affirm it.[28]

    [28] [1957] 2 QB 55, 67.

    (m)the rule of natural justice (or procedural fairness) is a maxim that lies deep in the common law which, according to authority[29] is an “indispensable requirement of justice”;[30]

    [29] Re Brook, Badart & Delcornyn [1864] 143 ER 1184, 1190; Cameron v Cole (1944) 68 CLR 571, 589; and Commissioner of Police v Tanos (1958) 98 CLR 383, 395-6.

    [30] Allesch v Maunz (2000) 203 CLR 172 (at [35]).

    (n)the rule of natural justice (or procedural fairness) is inherent in the proper conduct of judicial proceedings in a court of law;[31]

    (o)a recent statement of the content of procedural fairness or natural justice was given in International Finance Trust Company Ltd v New South Wales Crime Commission.  There French CJ held as follows –

    Procedural fairness or natural justice lies at the heart of the judicial function… It requires that a court be and appear to be impartial, and provide each party to proceedings before it with an opportunity to be heard, to advance its own case and to answer, by evidence and argument, the case put against it.  According to the circumstances, the content of the requirements of procedural fairness may vary.[32]

    (p)the content of the obligation of a decision-maker in administrative law to afford a person procedural fairness, especially in migration cases, has been the subject of extensive consideration by the High Court[33] and the question whether a procedure is fair is necessarily tied to the particular facts of the case;[34]

    (q)the concern of procedural fairness is the avoidance of “practical injustice”;[35]

    (r)the obligation to afford procedural fairness includes a general requirement to give a person who is the subject of a decision the opportunity to ascertain the relevant issues and comment on any adverse information before the decision is made, as assessed in its legal and factual context;[36]

    (s)the precise formulation is “an opportunity should be given to deal with adverse information that is credible, relevant and significant to the decision to be made”;[37]  and

    (t)not every detail needs to be put to the person.[38]

    [31] Taylor v Taylor (1979) 143 CLR 1, 4, 16; Re JRL, ex parte CJL (1986) 161 CLR 342, 350, Dick v Piller [1943] KB 497, 499 and Grimshaw v Dunbar [1953] 1 QB 408, 412.

    [32] (2009) 240 CLR 319 (at [54]).

    [33] Minister for Immigration and Boarder Protection v WZARH (2015) 256 CLR 326.

    [34] SZBEL v Minister for Immigration and Multicultural and Indigenous Affairs (2006) 228 CLR 152 (at [26]).

    [35] Re Minister for Immigration and Multicultural Affairs; ex parte Lam (2003) 214 CLR 1 (at [37]).

    [36] Kioa v West (1985) 159 CLR 550, 629.

    [37] Ibid.

    [38] In a migration context, that includes country information, AYX16 v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2020] FCAFC 99 (at [70]).

1. In Goh v Ren,[39] I canvassed the meaning of procedural fairness in the context of arbitrations under the Family Law Act.  It is relevant for present purposes to reiterate the comments I made there–

   (a)the overwhelming preponderance of Australian authority on the doctrine of procedural fairness is set out in factual scenarios of an administrative nature;[40]

   (b)section 13K(2) of the Family Law Act does not use the phrase “natural justice” and instead uses the phrase “procedural fairness”. The words “procedural fairness” appear in regulation 67I(2) of the Family Law Regulations in the context of the duties of the arbitrator.  In that regulation, the example of procedural fairness is given as being one of the arbitrator’s duties, namely, “giving each party to the arbitration a reasonable opportunity to be heard and to respond to anything raised by another party”;[41]

   (c)in an arbitration under the Family Law Act, the reasons for insisting on procedural fairness is as apparent as it is in public law. Justice Robertson identified those reasons in the following terms –

   So procedural fairness may improve the quality of the decision. It may assist in imparting the sense that justice has been done and been seen to be done. Public acceptance of the decision may be enhanced. In some contexts, it may protect human dignity. It may promote objectivity and impartiality. In my opinion it means that the perspective of the decision-maker must be altered so that instead of the only perspective being that of the person exercising the power, affording procedural fairness means that the perspective of the person affected must necessarily be taken into account.[42]

   (d)section 13K(1) invites attention to the procedural fairness in the “way in which the arbitration process as agreed between the parties and the arbitrator, was conducted”. The starting point in that analysis is the arbitration process agreed between the parties and the arbitrator. For the purposes of s 13K(2)(d) the next enquiry involves ascertaining whether and if so how a lack of procedural fairness occurred in the way in which the agreed arbitration process was conducted.

   [39] (2020) 61 Fam LR 508.

   [40] Ibid (at [32]).

   [41] Ibid (at [33]).

   [42] Ibid (at [40]) citing Justice Alan Robertson, ‘Natural Justice or Procedural Fairness’ (2015) Federal Judicial Scholarship 15.

2. In this application, the wife placed considerable store in the manner in which the arbitral hearing was conducted, especially whether cross-examination of Ms D would have mattered.  The fact remains that no evidence whatsoever was advanced before me about the manner in which the arbitral hearing was conducted.  The wife could have, but failed to, produce before me the transcript of the hearing before the arbitrator.  By having that transcript, it would have been possible to see what was said by whom about the factual matters relevant to paragraphs 12 and notation 13 of the arbitrator’s orders.  The wife as review applicant bore the burden of establishing all she wanted (or needed) to show in respect of the conduct of the hearing.  She failed to discharge that burden.  I am not persuaded that grounds 3, 4 and 5 had merit.  I dismiss them. 

   GROUND OF REVIEW 10

3. As a stand alone ground, this ground contained the wife’s contentions about the adequacy of the arbitrator’s reasons.  Counsel for the wife relied on the decision of the High Court in Westport Insurance Corp v Gordian Runoff Ltd[43] to contend that the test for ascertaining whether arbitral reasons are adequate was that set out by Donaldson LJ of the English Court of Appeal in Bremer Handelsgesellschaft mbH v Westzucker GmbH (No 2).[44]  Counsel for the wife invited me to apply a decision by a judge of what was then the Federal Circuit of Australia in Braddon & Braddon[45] in which the Bremer test was said to be wholly applicable to family law arbitrations.  Let me say at the outset that while family law arbitrations involve a form of non-curial alternative dispute resolution as does commercial arbitration, very few parallels otherwise exist between family law arbitrations and commercial arbitrations, still less international commercial arbitrations.  In family law arbitrations there is no “seat of arbitration”,[46] a centrally important consideration in commercial arbitration, especially international commercial arbitration.  In family law arbitrations there are no model rules as there are in commercial arbitrations and international commercial arbitrations, nor is there a secretariat as is a typical hallmark of international commercial arbitrations conducted in say, New York or Paris.  The combined operation of the provisions of the Family Law Act, the Family Law Regulations and the provisions of the Federal Circuit and Family Court of Australia Act (Family Law) Rules 2021 that bear upon family law arbitration are a code.  While it is true that domestic courts in an international context endeavour wherever possible to support the parties’ agreement for one or more arbitrators to determine their dispute, a body of authority has developed in the context of international commercial arbitration in relation to the adequacy of arbitral reasons.  Legislative provisions specify in large measure the content of those reasons.  Conversely, in Australian family law, the provisions of regulation 67P prescribe, brief as that regulation may be, the legislative foundation for the obligation to provide reasons.  Prescriptions about the content of reasons in family law arbitrations are not the subject of federal legislation or federal subordinate legislation. 

   [43] (2011) 244 CLR 239.

   [44] (1981) Lloyd's Rep. 130 CA.

   [45] [2018] FCCA 1845 (at [102]).

   [46] Raguz v Sullivan (2000) 50 NSWLR 236.

4. It is entirely erroneous to state, as Judge Harman stated in Braddon & Braddon, that principles concerning the standard, depth and content of reasons for arbitral awards in family law arbitrations equate to the principle espoused by Lord Justice Donaldson in Bremer.  I wrote about this in 2011 prior to my elevation to the Bench.[47]  To my mind it is appropriate to overrule the statements in Braddon & Braddon insofar as they may be taken to embrace the Bremer test, which by these reasons I now do.

   [47] Dr Josh Wilson QC, ‘Adequate Arbitral Reasons After Westport – Has the Tension Been Resolved to Any Real Degree’ (2015) 24 The Arbitrator & Mediator 9.

5. But what is the test for adequate reasons in family law arbitrations?

6. To my way of thinking, the principles as set out below apply to arbitrations under the Family Law Act.  

7. Australian family law arbitrators are required by the Family Law Regulations to be certified by the Australian Institute of Family Law Arbitrators and Mediators. Unlike in domestic commercial or international commercial arbitrations, trade arbitrators are not eligible for appointment pursuant to s 13E of the Family Law Act.  In order to be certified as a family law arbitrator, the relevant person must demonstrate a high degree of competence in family law cases and a specified percentage of that person’s annual practice must be in family law.  Family law arbitrators hold themselves out for selection as arbitrator, at least in part, by reason of their expertise in family law.  Put differently, it would be unthinkable that a person having no experience, training or practice in family law could be appointed as a family law arbitrator.  The appointed arbitrator must comply with duties imposed on arbitrators under the Family Law Regulations.  It must not be overlooked that in this case the arbitrator was an extremely experienced former judge of the Federal Circuit Court of Australia whose expertise in family law could not be doubted.

8. As for the principles concerning the adequacy of reasons, some important observations must be made.  They include the following –

   (a)as was recently held by the Full Court in Cantoni & Cantoni,[48] the adequacy of the reasons vary with the circumstances of the case;[49]

   (b)a failure to provide adequate reasons will itself constitute an error of law;[50]

   (c)not every point raised in argument needs to be the subject of the reasons;[51] and

   (d)it is not necessary for a determination to be made on each and every item of disputed evidence so long as it is appropriately clear by inference, what facts are found.[52]

   [48] [2022] FedCFamC1A 11.

   [49] Police Federation of Australia v Nixon (2011) 198 FCR 267 (at [67]).

   [50] Fleming v R (1998) 197 CLR 250, Pettitt v Dunkley [1971] NSWLR 376.

   [51] Shah & Akbarali v Barnet London Borough Council [1983] 2 AC 309, 350 and Housing Commission (NSW) v Tatmar Pastoral Co Pty Ltd [1983] 3 NSWLR 378.

   [52] Tatmar (op cit) at 386.

9. In Hunter Transport Accident Commission,[53] Nettle JA (as his Honour then was) provided a non-exhaustive list of indicators of valid reasons.  They were –

   (a)the extent of the reasons will depend on the circumstances of the case;

   (b)the reasons should deal with the substantial points raised;

   (c)ordinarily that will include findings on material questions of fact and the evidence on which those findings are based;

   (d)reasons should provide an intelligent explanation of the process of reasoning that has led the judge from the evidence to the findings and from the findings to the ultimate conclusions; and

   (e)if the judge has rejected evidence or material, the judge should refer to that evidence or material and explain why that evidence or material was rejected.

   [53] [2005] VSCA 1.

10. Those propositions apply to arbitrators.

11. The decision of Gray J in Sun Alliance Insurance Ltd v Massoud[54] is cited frequently in this Court for the statement of principle about the adequacy of reasons.  There, Gray J held that reasons will be inadequate if an appeal court is unable to ascertain the reasoning on which the decision is based or if justice is not seen to be done.  That said, the reasons as a whole must be examined in order to determine whether the minimum content of sufficiency for reasons has been met.[55]

    [54] [1989] VR 8, 17.

    [55] Francis v Todd [2011] WASC 185 (at [18]).

12. Various iterations have been given of the need for the path of reasoning to be exposed.[56]

    [56] Transport Accident Commission v Kamel [2011] VSCA 110, Resi Corporation v Munzer [2016] SASCFC 15 (at [91]), Roy Morgan Research Centre Pty Ltd v Commissioner of State Revenue (2001) 207 CLR 72 (at [26]). AK v Western Australia (2008) 232 CLR 438, 453 (at [45]), Goodrich Aerospace Pty Ltd v Arsic (2006) 66 NSWLR 186, 191 (at [28]) and Cantwell v Beitzel (2014) 87 NSWLR 103, 111 (at [31]).

13. Any submission worthy of serious consideration should ordinarily receive attention in reasons.[57]

    [57] Sydney West Corporations Ltd v Aqua Clear Technology Pty Ltd [1996] NSWSC 640.

14. Drawing together those threads, I take the view that the arbitrator in this case considered all submissions worthy of consideration in his award.  I also take the view that the arbitrator’s path of reasoning was sufficiently exposed leading the arbitrator from the evidence to the findings and from the findings to the ultimate conclusion.  It must not be forgotten that an arbitrator is not required to consider each and every item of disputed fact.  However, it is necessary for the arbitrator’s path of reasoning to be ascertained.  In my view, the reasons in this arbitration did that.

15. This ground of review was devoid of merit.  I dismiss it.

    CONCLUSION

16. The wife’s application under s 13J fails. In separate reasons to be delivered later I deal with costs.

I certify that the preceding sixty-four (64) numbered paragraphs are a true copy of the Reasons for Judgment of the Honourable Justice Wilson.

Associate:

Dated:       6 May 2022