JANCOS & ABELAS - [2020] FCCA 459

FEDERAL CIRCUIT COURT OF AUSTRALIA

JANCOS & ABELAS

[2020] FCCA 459

Catchwords:
FAMILY LAW – Arbitration – application for enforcement of Arbitral Award – Application for review or setting aside of Arbitral Award - where registration of Arbitral Award previously consented to and/or no objection raised – consideration of the circumstances in which the Court should set aside or review an Arbitral Award – consideration of grounds for review of Arbitral Awards under the Family Law Act 1975 (Cth).

FAMILY LAW – Costs – party/party costs – financial circumstances of the parties – conduct of the parties – where the respondent has been wholly unsuccessful.

Legislation:

Family Law Act 1975 (Cth) ss.13E, 13H, 13H(2), 13J, 13K, 13K(2)(c), 69ZW, 79A, 79A(1)(a), 90SN, 117, 117(2A)

Family Law Rules 2004 (Cth) sch. 1
Family Law Regulations 1984 (Cth) reg. 67Q(3)
Federal Circuit Court Rules 2001 (Cth) sch. 1, div. 21

Cases cited:

Allesch & Maunz [2000] HCA 40
Blanco & Blanco (No. 2) [2019] FCCA 2458
Gebert & Gebert (1990) FLC 92-137
Suiker & Suiker (1993) FLC 92-436
Lane & Lane (2016) FLC 93-699
Flicking & Flickling (1995) FLC 92-664
In the Marriage of Holland (1982) FLC 91-243
Taylor & Taylor (1979) 143 CLR 1
Keil & Kingscote [2018] FamCAFC 169
Simpson & Hamlin (1984) FLC 91-576
TCL Air Conditioner (Zhongshan) Co Ltd v The Judges of The Federal Court of Australia & Anor [2013] HCA 5
Penfold & Penfold [1980] HCA 4
Re JJT; Ex parte Victoria Legal Aid [1998] HCA 44
Davida and Davida (Costs) [2011] FamCAFC 61
Prantage & Prantage (Costs) [2014] FamCA 850

Other articles cited:
Family Law for the Future — An Inquiry into the Family Law System” ALRC 135 March 2019

Applicant:

MS JANCOS

Respondent:

MR ABELAS

File Number:

PAC 2440 of 2016

Judgment of:

Judge Harman

Hearing date:

20 February 2020

Date of Last Submission:

20 February 2020

Delivered at:

Parramatta

Delivered on:

20 February 2020

REPRESENTATION

Counsel for the Applicant:

Ms De Vere

Solicitors for the Applicant:

PJM Lawyers

Respondent:

No appearance

ORDERS

I dismiss the Application initiating proceedings of Mr Abelas filed 22 November 2019.
Mr Abelas shall, as a contribution to the costs of Ms Jancos incurred in these proceedings, pay to Ms Jancos, or as she may direct, the sum of $15,962.20, such costs to be a charge upon the interests of Mr Abelas with respect to the proceeds of sale of the properties B Street, Suburb C and D Street, Suburb E and to be deducted from the share of the proceeds of sale to which Mr Abelas is entitled (pursuant to the Arbitral Award of Mr F registered by this Court) and paid to Ms Jancos (or as she may direct) prior to any distribution of funds to Mr Abelas or any accounting to him with respect to those funds.
Remove all issues from the list of cases awaiting hearing.
Upon the expiration of the Appeal period and in the event that no appeal is lodged that all exhibits…

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 JANCOS & ABELAS

Details

AGLC: Jancos and Abelas [2020] FCCA 459
Case: [2020] FCCA 459
Decision Date: 20 February 2020

CaseChat Overview and Summary

In the matter of *Jancos & Abelas*, Judge Harman of the Family Court of Australia considered an application by Mr Abelas to set aside an arbitral award, which had previously been registered by the Court with his consent or without objection. Ms Jancos sought the enforcement of this award.

The central legal issues before the Court were the circumstances under which an arbitral award registered under the *Family Law Act 1975* (Cth) could be reviewed or set aside, and the grounds for such review. The Court also considered the matter of costs, specifically party/party costs, in light of the parties' financial circumstances and conduct, particularly the respondent's lack of success in the proceedings.

Judge Harman dismissed Mr Abelas's application to set aside the arbitral award. The Court reasoned that the grounds for setting aside or reviewing an award under the Act were not met in this instance, especially given the prior consent to registration. The Court ordered Mr Abelas to pay $15,962.20 towards Ms Jancos's costs, to be a charge upon his interests in the proceeds of sale of specified properties and deducted from his share of those proceeds before distribution. The Court also made orders regarding the return or destruction of exhibits and subpoenaed material upon the expiry of the appeal period.

Orders

Orders of the court

I dismiss the Application initiating proceedings of Mr Abelas filed 22 November 2019.

Mr Abelas shall, as a contribution to the costs of Ms Jancos incurred in these proceedings, pay to Ms Jancos, or as she may direct, the sum of $15,962.20, such costs to be a charge upon the interests of Mr Abelas with respect to the proceeds of sale of the properties B Street, Suburb C and D Street, Suburb E and to be deducted from the share of the proceeds of sale to which Mr Abelas is entitled (pursuant to the Arbitral Award of Mr F registered by this Court) and paid to Ms Jancos (or as she may direct) prior to any distribution of funds to Mr Abelas or any accounting to him with respect to those funds.

Remove all issues from the list of cases awaiting hearing.

Upon the expiration of the Appeal period and in the event that no appeal is lodged that all exhibits then be returned to the party who tendered same and that all material produced on subpoena or pursuant to section 69ZW of the Family Law Act 1975 be returned to the person or organisation who produced same or securely destroyed.

Background

Background to the litigation

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Evidence

Evidence Before The Court

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Decision

Reasons for decision

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Ratio Decidendi

Legal Principle Established

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