Keaty & Swann
[2023] FedCFamC1F 178
FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA
(DIVISION 1)
Keaty & Swann [2023] FedCFamC1F 178
File number(s) BRC 11973 of 2022 Judgment of WILSON J Date of judgment 27 March 2023 Catchwords FAMILY LAW – NATIONAL ARBITRATION LIST – s 10L arbitration – award registered – s 13J review application – wife as review applicant and applicant in the arbitration dissatisfied with award – 60/40 division on contributions with husband being awarded a 2.5% extra on s 75(2) issues – eventual result 57.5/42.5% division – no question of law properly framed – no basis shown for reviewing award – review application dismissed. Legislation Family Law Act 1975 (Cth) ss 13H, 13J, 13L, 75(2) and 79
Federal Circuit and Family Court of Australia (Family Law) Rules 2021 (Cth)
Cases cited D & D [2003] FamCA 473
De Winter v De Winter (1979) 4 Fam LR 583
Galea v Galea (1990) 19 NSWLR 263
Gronow v Gronow (1979) 144 CLR 513
House v R (1936) 55 CLR 499
In the Marriage of Zappacosta (1976) 2 Fam LR 11,214
Jabour v Jabour (2019) 59 Fam LR 475
Kennon v Kennon (1997) 22 Fam LR 1
Lovell v. Lovell (1950) 81 CLR 513
Mallet v Mallet (1984) 156 CLR 605
Norbis v Norbis (1986) 161 CLR 513
Paviello & Paviello [2022] FedCFamC1F 592
Sionko & Sionko [2022] FedCFamC1F 774
Stanford v Stanford (2012) 247 CLR 108
Vida & Vida [2022] FedCFamC1F 968
Articles cited ‘National Arbitration List – A Practical Look Two Years On’ presented to the Resolution Institute by the Honourable Justice Wilson (Sydney, 2022) <National Arbitration List – A Practical Look At The Last Two Years | Federal Circuit and Family Court of Australia (fcfcoa.gov.au)> Division Division 1 First Instance Number of paragraphs 81 Date of last submission 24 February 2023 Date of hearing On the papers Place Brisbane Solicitor for the applicant applicant in person Counsel for the respondent Ms A. J. Frizelle Solicitor for the respondent Freedom Law ORDERS
BRC 11973 of 2022 FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 1)
BETWEEN MS SWANN
Applicant
AND MR KEATY
Respondent
order made by
WILSON J
DATE OF ORDER
27 March 2023
THE COURT ORDERS THAT –
1.The wife’s application pursuant to s 13J of the Family Law Act dated 24 October 2022 is dismissed.
2.Any application for costs must be filed and served by noon on 21 April 2023 together with any affidavit in support and written submissions.
3.Any opposition to any costs application referred to in paragraph 2 above must be filed and served by noon on 19 May 2023 together with any affidavit in opposition and written submissions.
4.The question of costs will be decided thereafter on the papers.
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 Keaty & Swann has been approved pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth).
REASONS FOR JUDGMENT
WILSON J
On 1 August 2022 the arbitrator handed down the arbitral award in this proceeding.
On 28 September 2022 an order was made registering the award pursuant to s 13H of the Family Law Act (“the Act”).
The wife sought orders under s 13J of the Act for the review of the arbitrator’s award.
Subsequent to the registration of the award, this proceeding was before me on 17 November 2022, 24 November 2022, 6 December 2022 and 10 February 2023, during all of which appearances the wife was not represented and displayed next to no familiarity with the workings of the National Arbitration List. I invited her to read my paper[1] with particular reference to the observations on s 13J review applications. Her review application was expressed as follows, there being no expressed question of law or ground of review –
1. Review the registered award - BRC11973/2022 - pursuant to section 13J of the Family Law Act.
2.Vary the award to see the wife's contributions assessed at 62.5% with an additional 3% for Section 75(2) factors being 2% for [Y] (15) and 1% for [X] (17). The husband should still receive a 2.5% adjustment for Section 75(2) factors. This variation will see the property pool divided 63/37% in the applicant's favour. The reasons for this are itemised in the applicant's accompanying affidavit. To effect the property division above –
(a)the husband should pay the wife $69,178.73 from the cash component of his award.distributed in August. This will result in the husband having received $282,862.87 and the wife having received $286,510.13 of the cash balance from the sale of the family home;
(b)all other areas of the award that don’t relate to the net funds distributions should remain unchanged.
3. Register the revised award to finalise our property settlement matter.
[1] ‘National Arbitration List – A Practical Look Two Years On’ presented to the Resolution Institute by the Honourable Justice Wilson (Sydney, 2022), <>
Another reason that accounted for the very significant delay in bringing this review application to finality following the 28 September 2022 registration of the award lay in the fact that the wife took the erroneous approach of relying on her trial affidavit before the arbitrator as her affidavit on her s 13J review application. She told me she needed time to prepare additional affidavit material. After she had filed her submissions in support of her review application and the husband had filed his, the wife filed further submissions to which the husband further replied.
This was a s 10L arbitration. The arbitrator was a solicitor. Both husband and wife were represented by counsel. The arbitrator proceeded to conduct the arbitration along conventional adversarial orthodoxy. The wife took no point on her s 13J application about the arbitrator doing that. Instead, the wife complained that by reason of s 75(2) factors, a further 3% needed to be added leading to an overall division of the property pool as to 63% to the wife and 37% to the husband. She said the reasons for that variation were set out in her affidavit made 24 October 2022.
The wife made two affidavits in support of her review application, the first on 24 October 2022 and the second on 9 January 2023. None provided what could be considered as questions of law or even grounds of review. That said, the review applicant was a litigant in person in respect of whom I am prepared to proceed on the basis that she is untutored in the legal niceties of advancing or even framing a review application following an arbitration. Accordingly, in considering the propositions she makes in both affidavits, I have recognised that she is not legally trained and therefore the propositions she advances may not answer the descriptor grounds of review or questions of law. Be that as it may, it became necessary to consider each affidavit and the issues raised in those affidavits.
First, the review applicant sought to impugn paragraph 8.7 of the arbitrator’s reasons, contending that the arbitrator failed to provide an appropriate adjustment to recognise that she (the review applicant) had since 2021 been the primary carer for the children of the marriage and will be until the children achieve their majority.
In opposing that challenge, the husband as respondent to this review application stated at paragraph 5 of his 15 November 2022 affidavit that the arbitrator’s reasons at paragraphs 8.1 to 8.7 disclosed no failure to provide the appropriate adjustment.
Section 8 of the arbitrator’s reasons addressed s 75(2) factors. It was headed in that way. In essence, the arbitrator recorded that the children were then 17 years of age and 15 years of age. The arbitrator found that the husband was 56 years of age and that he was capable of performing some form of work, although not necessarily in his field of qualifications. The arbitrator said the following in paragraph 8.7 of the award –
8.7However, having regard to the husband’s state of health and the uncertainty around his future employment, I do not consider that it would be appropriate to make an adjustment, as the wife contends, in her favour taking into account her ongoing care of the parties’ children. While I accept that that will be a burden on the wife moving forward for the next [few] years in the case of [Y], the wife’s superior income earning capacity and the terms of her employment are such that, overall, I consider that it is appropriate that a small adjustment be made in favour of the husband under section 75(2) of the Act of 2.5%.
The wife’s complaint about paragraph 8.7 was that the arbitrator did not provide an appropriate adjustment to recognise the wife’s sole raising of the children to maturity. The eldest was at the date of arbitration almost 18 years of age. The youngest was 15. The arbitrator made a 2.5% adjustment in respect of the youngest, citing as the main reason for that approach the wife’s superior income earning capacity. The wife now asserts she is a contractor having no specific employment. The wife seemed to ignore her superior earning capacity. The 2.5% adjustment was entirely within the valid exercise of the discretion conferred upon the arbitrator by s 79 of the Act. The wife sought a variation of the award by an additional 3%. I am not persuaded that any question of law arose warranting interference with the arbitrator’s award. The 2.5% adjustment made by the arbitrator was appropriate.
I dismiss the challenge to paragraph 8.7 of the award.
Next, the wife contended that the arbitrator erred in failing to acknowledge that for the majority of the relationship she was the primary carer, home-maker and breadwinner. In his affidavit made 15 November 2022 the husband disputed the wife’s assertions. He pointed out that the arbitrator in fact recognised the roles the wife occupied in the relationship between paragraphs 7.32 to 7.39 of the arbitral award. There the arbitrator found as follows –
7.32During the parties’ relationship, both of the parties worked to varying degrees. It is the wife’s case that:
(a) The husband did not work to his capacity and there were periods where he worked inconsistently or not at all including having regard to her assertions in relation to the husband’s [prohibited substance] usage and the alleged impacts upon him of that habit;
(b) She made various contributions to assist the husband such as by acquiring him [Motor Vehicle 1] to assist with his employment, replacing a motor vehicle from her savings; and
(c) In addition to being employed throughout the relationship, usually earning more than the husband, she would also undertake the greater homemaker and parent role, albeit with the assistance of child carers and the like.
7.33It is the husband’s case that he did undertake employment and that there were periods when he earned more than the wife, including for the period where she operated a [retail business] which was not particularly profitable (and the wife concedes that). He states that he worked as a [tradesman], working for various contractors and would often be paid in lump sums that he gave to the wife. The husband further states that he would undertake tasks around the home including gardening and was responsible for a significant portion of the children’s care.
7.34 I accept that the evidence indicates that the wife earned more than the husband during the course of their relationship. However, that finding must be considered in light of all of the circumstances of the parties’ relationship, including that this was a relationship involving two children.
7.35 In this regard, the wife also relied upon the evidence of one of the carers for the parties’ children, [Ms C]. She makes various general assertions that are often very broad in nature as to her observations of the husband’s contributions around the home and as a parent during the periods that she was employed. [Ms C] was made available for cross-examination. While I find that [Ms C] was a truthful witness, she conceded that she could only make observations about the husband’s role while she was at the home which depended upon the hours that she worked, whether she was away from work etc. Ultimately, not much turns on the evidence of [Ms C] either way in my view.
7.36 The wife also states that:
(a) In 2009/2010 when the parties were separated, the parties’ children lived solely with her and she did not receive child support. However, I also note the husband’s evidence that he routinely visited and spent time at the wife’s home including staying at that home regularly.
(b) In 2016/2017, she relocated to [City B] for employment and the husband became the children’s primary carer. The wife states that she was home (in Queensland) for three to five day blocks each fortnight. She states that she returned home for more than half of the time during that 18 month period.
(c) She undertook the financial management for the household.
(d) She undertook a considerable amount of work in readying the [Suburb E] property for sale.
7.37 I also accept that, during the periods when the husband’s son, [V], spent time with the parties, the wife would have made contributions to his care.
7.38 For the husband, it is submitted that:
(a) He worked throughout the relationship and undertook a variety of household tasks including washing, tidying up and readying the children for school;
(b) During those period where the wife was undertaking contract work away from Queensland, he was the children’s primary carer;
(c) He contributed to the care of the wife’s son, [W], in the period that he resided with the parties;
(d) He undertook various improvements to the [Suburb E] property during the period of ownership;
(e) He similarly assisted with the preparation of the [Suburb E] property for sale; and
(f) He undertook the majority of transport requirements for the children during the relationship as the wife was often working, including taking them to various extracurricular activities.
7.39 Overall, it is submitted on behalf of the husband that he supported the wife in the ways in which he could over the course of their relationship.
It is readily apparent from the most cursory reading of those passages that the arbitrator was keenly attuned to the wife’s role in the relationship, especially as primary carer, home-maker and more significant earner. I do not accept the wife’s characterisation of the arbitrator’s findings in those passages of the award set out above. The wife’s criticisms were devoid of merit. I reject them.
In paragraph 9 of her affidavit made 24 October 2022 the wife asserted that the arbitrator erred at assessing contributions at 60% in the wife’s favour and 40% in the husband’s favour having regard, so the wife said, to the fact that she brought 13% of the total property pool into the relationship where the husband brought nothing and having regard to the additional following matters –
(a)she was the breadwinner;
(b)she was the primary carer of the children;
(c)she undertook the majority of home duties;
(d)she assisted equally with all home improvements;
(e)she performed the husband’s business administration;
(f)only she had superannuation;
(g)she increased the size of the property pool by 19%; and
(h)she funded all renovations.
The husband disputed those contentions, relying on the findings and conclusions of the arbitrator in paragraphs 7.10 to 7.30 and in paragraphs 7.46 to 7.58 of the arbitrator’s reasons.
Before examining each of the wife’s contentions, some preliminary observations must be made.
First, it has been said time and again in authorities binding upon me that arriving at an amount that represents a just and equitable division of the parties’ assets is not a precise mathematical formula. Second, the discretion conferred by s 79 is extraordinarily wide, as was held by the High Court in De Winter v De Winter.[2] Third, an appeal against a discretionary order (and while judicial review under s 13J does not precisely equate with appeal) necessarily invokes principles laid down by the High Court time and time again in such leading authorities as House v R,[3] Norbis v Norbis,[4] Stanford v Stanford,[5] Gronow v Gronow,[6] Lovell v. Lovell,[7] and Mallet v Mallet.[8] It is not sufficient for the party challenging the discretionary decision to contend that the order is not to that party’s liking or that it is somehow unfair. The party challenging the discretionary decision must provide cogent substantiation that the decision maker mistook material facts, took into account irrelevant issues, failed to take into account relevant considerations or reached a conclusion that was plainly unjust.
[2] (1979) 4 Fam LR 583.
[3] (1936) 55 CLR 499.
[4] (1986) 161 CLR 513.
[5] (2012) 247 CLR 108.
[6] (1979) 144 CLR 513.
[7] (1950) 81 CLR 513.
[8] (1984) 156 CLR 605.
Between paragraphs 7.10 and 7.15 of the arbitral reasons, the arbitrator considered the parties’ initial contributions. That included the arbitrator’s consideration of the wife’s interest in real property in the D Region, her motor vehicle, as well as a consideration of the husband’s contentions about his initial contributions. Between paragraphs 7.16 to 7.32 the arbitrator examined the parties’ contributions during the relationship including the purchase and sale of real estate and the application of the proceeds of sale. Between paragraphs 7.32 to 7.45 the arbitrator addressed how and in what respect the parties worked throughout the relationship, which, in the wife’s case included undertaking greater home-maker and parenting roles. The arbitrator stated in paragraph 7.34, correctly in my view, that the wife’s contentions that she earned more than the husband during the relationship needed to be considered in light of all the circumstances. While not citing authority for that undoubtedly correct proposition, Jabour v Jabour[9] is a recent restatement that a person undertaking a s 79 division must consider all myriad of circumstances. The arbitrator also addressed the wife’s work as carer, the parties’ contentions about improvements to properties and superannuation.
[9] (2019) 59 Fam LR 475
Between paragraphs 7.45 and 7.50 of the arbitral award, the arbitrator considered post-separation contributions.
Having set out in chronological sequence the parties’ competing contentions in relation to their respective contributions and examined the veracity of each claim advanced by each party, between paragraphs 7.53 and 7.58 the arbitrator analysed each asserted contribution. The arbitrator chose to adopt a global approach in the assessment of contributions. The task of weighing each party’s contributions was undertaken and recorded in paragraph 7.57 of the arbitrator’s reasons. That led the arbitrator to conclude that an appropriate assessment of contributions was 60% in favour of the wife and 40% in favour of the husband. That was adjusted in favour of the husband under s 75(2) by 2.5% so that the wife received 57.5% of the net assets.
The wife contended that the arbitrator erred by assessing contributions at 60% in favour of the wife having regard to the matters identified above at paragraph 15. In my view, that contention failed. The arbitrator did in fact consider the extensive array of contributions by each party in arriving at an assessment of 60% in the wife’s favour. The wife’s complaint in that regard was not borne out by the evidence.
The wife challenged paragraph 5.3 of the arbitrator’s reasons in which the arbitrator recorded that the wife did not press for an addback of the husband’s one-off payment. Her grievance was expressed in following terms –
On the morning of Arbitration, once everyone had entered the video conference, my solicitor asked me to leave the room for 20 minutes. When I was called back in, I was told that the [one-off] payment was now ‘off the table’. I assumed this was a decision made by the Arbitrator and did not question it on that basis. I believe there was a lack of procedural fairness in dismissing this add back as I was not consulted and only accepted the decision on the day due to believing the Arbitrator made the decision.
The husband disputed that any error arose in relation to the one-off payment. He said the factual substratum on this issue was a matter between the applicant and her legal advisors.
The one-off payment issue was addressed by the arbitrator in paragraph 7.47 of the reasons. It was in the following terms –
At or about the time of separation, the husband received a [one-off] payment via his superannuation totalling over $92,000.00. He applied some of that to debt reduction, purchased [Motor Vehicle 2] previously discussed, paid for various expenses including contributing to family holidays and a retreat for himself, and paid for his living expenses. None of that amount is left.
The wife deposed to her assuming the arbitrator had decided that the one-off was “off the table” (the wife’s own words from paragraph 11 of her affidavit). Her assumption is not evidence. She did not say what her legal representative told the arbitrator after the wife had left the room. A transcript of the arbitration may have illuminated the issue. No transcript was put in evidence. I am unable to reach any conclusion about how and in what circumstances the one-off claim was allegedly “off the table”. However, it may well be that the wife’s legal representative did not press the point having regard to the fact that the money had been spent and a decision to not pursue a claim to an addback was deliberately made. Of course, without seeing the transcript, that may amount to guessing which I refrain from doing. I was not persuaded that the wife’s grievance in paragraph 11 of her affidavit had been proved.
At paragraph 12 of her affidavit the wife focused on paragraph 4.12(b) of the arbitrator’s award, especially the finding that a Kennon claim in relation to family violence had not been demonstrated by the wife. The wife took issue with that finding. The husband denied the existence of error.
The precise finding about domestic violence was briefly expressed at paragraph 4.12(b) of the arbitrator’s reasons. It was in following terms –
The wife refers in her material to various instances of domestic violence that she says occurred throughout the course of the parties’ marriage. That is denied by the husband. I was not taken in submissions on behalf of the wife to this issue and it was not suggested that any further weighting on behalf of the wife should be made having regard to the principles in Kennon & Kennon [1997] FamCA 27. Accordingly, I do not find that this case falls within the narrow band of cases to which Kennon applies.
The wife complained that she did not recall the topic being discussed. Her recollection is nowhere near as useful as a transcript would have been in ascertaining what was in fact said on point. The wife bore the legal onus to prove her challenge under s 13J. She did not do so. In the absence of evidence that revealed that the arbitrator’s findings in paragraph 4.12(b) of the reasons were factually wrong, I am unwilling to rely on the wife’s submission that she is unable to recall the point being agitated. Claims made in reliance upon Kennon v Kennon[10] call for precise evidence and the arbitrator recorded that such evidence was not adduced. No error was made in that.
[10] (1997) 22 Fam LR 1.
In paragraph 13 of her affidavit the wife took issue with observations by the arbitrator at paragraph 7.27 of the arbitrator’s reasons. The wife asserted that, based on her memory, there was no cross-examination on the relevant issue. She said that if there had been cross-examination on the point, she would have been able to explain how a certain split in the proceeds of sale had been agreed.
What may have happened if other things had happened is only ever a matter of conjecture, surmise or speculation but it is not evidence. I will not receive the wife’s statement in an affidavit that is required by rules of court to address issues of fact about what may have happened if other things had happened. The wife was not legally represented on this s 13J application. But that provides no warrant to jettison established principles of practice and procedure on the hearing of a s 13J application. I am unable to see how the finding in paragraph 7.27 of the arbitrator’s award is amenable to challenge. It was as follows –
It is not possible to make a finding about whether or not the parties did have an agreement of the kind that the wife asserts in relation to the ownership of the [Suburb E] property. The evidence that the wife relies upon (beyond the title search itself for the property) is an email sent by her to the conveyancers. However, the wife undertook that step unilaterally and there is no evidence that the husband knew about it or agreed.
Those findings were open. No error was thereby disclosed.
In paragraph 14 of her affidavit the wife took issue with the last sentence of paragraph 7.44 of the arbitrator’s reasons. The relevant passage was as follows –
Similarly, there is no sufficient evidence to demonstrate that the husband’s [prohibited substance] use meant that he was unable to contribute financially or non-financially to the household.
The wife stated in her affidavit that she was not cross-examined on the issue and she asserted that such an omission constituted error. That is nonsense. A cross-examiner has a tolerably free rein on the matters that may be the subject of cross-examination. Most cross-examiners carefully analyse the subject matter of their anticipated cross-examination well ahead of the witness even entering the witness box. The wife had no legal foundation for complaining that her cross-examiner decided to not cross-examine her on a particular issue. The evidentiary consequences of that omission lie where they fall. Here, the arbitrator concluded that insufficient evidence existed to demonstrate that the husband was unable to contribute financially or in a non-financial manner by reason of his ingestion of a prohibited substance. It fell to the applicant to prove her case. The arbitrator was not persuaded on the point canvassed in paragraph 7.44 of the arbitrator’s reasons. Most of paragraph 14 of the wife’s affidavit was not made up of statements of fact as required by the Federal Circuit and Family Court of Australia (Family Law) Rules 2021 and instead were unsubstantiated submissions without evidentiary foundation.
In paragraph 15 of her affidavit, the wife stated that she “thought there was a lack of procedural fairness in discarding” the evidence of Ms C, the nanny. The wife is not legally trained. Her use of the phrase “procedural fairness” seemed to be a lay person’s expression of the phrase because there was no want of procedural fairness in relation to the evidence of Ms C. The witness gave evidence. The wife purportedly offered a gratuitous observation that Ms C had no time to read documentation in advance of the evidence she gave. This seems to point to a lack of witness preparation rather than a lack of procedural fairness. The arbitrator’s findings about Ms C were recorded at paragraph 7.35 of the arbitrator’s reasons. There, the arbitrator found as follows –
In this regard, the wife also relied upon the evidence of one of the carers for the parties’ children, [Ms C]. She makes various general assertions that are often very broad in nature as to her observations of the husband’s contributions around the home and as a parent during the periods that she was employed. [Ms C] was made available for cross-examination. While I find that [Ms C] was a truthful witness, she conceded that she could only make observations about the husband’s role while she was at the home which depended upon the hours that she worked, whether she was away from work etc. Ultimately, not much turns on the evidence of [Ms C] either way in my view.
That was an entirely open and proper finding. The wife misunderstands the nature and import of the procedural fairness rule. In paragraph 7.35 of the arbitrator’s reasons the arbitrator passed upon the witness’s veracity. The arbitrator found that Ms C made a collection of generalised comments about which “not much turns on the evidence of [Ms C] either way”. There was no want of procedural fairness in that observation.
In paragraph 16 the wife took issue with the arbitrator’s observations in the second sentence of paragraph 7.52 of the arbitrator’s reasons. To better understand the context of the second sentence of paragraph 7.52, it is necessary to set out the whole paragraph. It was as follows –
The wife also relies upon the work the expenses that she met in order to ready the [Suburb E] property for sale. However, in that regard, I note that the wife has been reimbursed various expenses from the proceeds of sale of the property and, further, there is an item in the balance sheet which represents the husband contributing 50% of those costs. However, I do accept that the wife also made contributions to the [Suburb E] mortgage until it was sold, during a period where the husband had the benefit of residing in the property and this is a contribution by her towards the property pool, noting that it was over and above the payments that she as making to the [Suburb F] property.
The gravamen of her complaint is that the husband’s counsel was confused in the way he cross-examined the wife. Whether that was correct or not, I am not prepared to accept the wife’s assertions about counsel’s alleged confusion. If the wife wished to be taken seriously in her complaint about this component of the case, extremely small as it is, she needed to obtain, exhibit and pinpoint from the transcript precisely how the cross-examining counsel was confused then she needed to link any such confusion to a finding in paragraph 7.52. The wife did neither. I reject the challenge in paragraph 16 of her affidavit.
In paragraph 17 of her affidavit the wife took issue with paragraph 7.6 of the award, specifically, the arbitrator’s observation that the wife did not point to any other contribution she made causing an increase in the value of the property. The wife said she was not cross-examined on point. The wife again complained that the absence of cross-examination on a particular matter denied her the opportunity of substantiating a particular point. That approach inverts the proper process of proving a point. The party alleging must prove. If the wife failed to adduce proper forensically maintainable proof of a particular point the consequences of that failure lay at her feet. She may need to take that up with her legal advisors.
In paragraph 18 of her affidavit she asserted that the award was not just and equitable.
The wife’s 24 October 2022 affidavit, the details of which have been set out at length above, was made subsequent to the registration of the award on 28 September 2022. On 17 November 2022 the wife did not appear when this case was called so the case was adjourned for one week to 24 November 2022. On 24 November 2022 the applicant appeared in person and informed me that she wished to invoke s 13J as the basis of her review application and that all affidavit material on which she relied had been filed. That was a reference to her 24 October 2022 affidavit. On that basis I fixed 30 November 2022 for the hearing of her review application. That date was administratively moved to 6 December 2022. On 6 December 2022 the wife told me she had read my paper on arbitration and had mistakenly taken the view that her 24 October 2022 affidavit sufficed in support of her s 13J application and she needed time to file further evidence in support of her s 13J application. There being no objection to the wife adducing further evidence I gave her a short time to do so but made two orders on 6 December of not only a procedural nature but also of a substantive nature. Those orders were as follows –
1.On or before 4:00pm on 9 January 2023 [Ms Swann] must file and serve any affidavit in support her s 13J application together with any questions of law and submissions upon which she relies.
2.On or before 4:00pm on 30 January 2023 the respondent must file and serve any reply affidavit together with his response to the questions of law filed by the applicant and any reply submissions.
Up to that point in time, the wife had studiously ignored the requirements of s 13J of the Family Law Act that called for her to state the questions of law to be determined on the review application. I expressly ordered her to state her questions of law and for the husband to respond. On 10 February 2023, the wife filed further submissions out of time and without leave so I allowed the husband to file reply submissions by 24 February 2023 which he did.
THE WIFE’S QUESTIONS OF LAW
Despite devoting 16 paragraphs of complaints and challenges to the arbitral award in her 24 October 2022 affidavit, the wife fundamentally recast her case on the review application, raising seven matters which she erroneously called “questions of law (issues)”. In addition to setting out each so-called question of law, I have stated the relevant question, the wife’s submissions on the relevant question, the husband’s submissions on the relevant question and my consideration of each relevant question.
QUESTION A
The precise question posed by the wife was the following –
A. Did the Rules of Evidence apply to the private Arbitration BRC11973/2022?
The wife submitted that the rules of evidence were not excluded by agreement so the rules of evidence were deemed to apply. The husband also submitted that the rules of evidence applied. The issue did not arise in the arbitration. No one took the point that the rules of evidence did not apply. Question A was hypothetical. Courts usually decline to answer hypothetical questions. To the extent that an answer is sought I answer by stating that Question A is unnecessary to answer.
QUESTION B
The precise question posed by the wife was the following –
B.If the answer to question A above is Yes, did the Arbitrator properly apply these rules correctly when considering the direct and indirect financial contributions made to the acquisition, conservation or improvement of property (s 79(4)(a) of the Act), the contributions other than a financial contribution made to the acquisition, conservation or improvement of a property (s 79(4)(b) of the Act) and the contribution made by the parties to the welfare of the family in their capacity as parent and homemaker (s 79(4)(c) of the Act).
The parties proceeded to address this question on the basis that Question A had been answered in the affirmative even though no question of the applicability of the rules of evidence arose in the case. The question as posed erroneously mistakes rules of evidence applicable in the conduct of an arbitration with the statutory considerations under s 79 with which an arbitrator must engage under the Family Law Act. To state that rules of evidence apply to an arbitration gives no insight into whether some error arose in the application of correct statutory principles in the determination of a s 79 application.
The wife used Question B as a vehicle to submit that the arbitrator’s conclusions were so unreasonable that no properly informed arbitrator could have reached them. That was a direct assault upon the arbitrator’s conclusion that her assets (prior to s 75(2) adjustments) were to be divided as to 60% to the wife and 40% to the husband.
The husband contended that the arbitrator followed the correct legislative pathway. Specifically, the husband submitted –
(a)the arbitrator undertook a detailed analysis of the parties’ contributions and did not fall into error by applying a mathematical formula;[11]
(b)the wife continues to assert that the one-off sum should be added back even though the sum had been exhausted, as the arbitrator found;
(c)a disparity in income existed subsequent to separation;
(d)no wastage argument was raised by the wife; and
(e)the arbitrator correctly found in the percentages she did.
[11] D & D [2003] FamCA 473.
I reject the contention by the wife that the arbitrator failed to follow the correct statutory pathway or that the award was so unreasonable that no arbitrator properly informed could have reached the same result.
I answer Question B by stating that the arbitrator correctly assessed all relevant contributions as required by s 79(4)(a), s 79(4)(b) and s 79(4)(c) of the Family Law Act.
QUESTION C
The precise terms of the question posed were as follows –
C.Did the arbitrator apply the correct legal principles in relation to assessing the Husband’s claims about management of the household and care of the children at paragraph 7.55and 7.57(c)?
In essence, the wife submitted under this ground that the arbitrator’s discretion miscarried because, so she said, the arbitrator’s finding that both parties worked throughout the relationship and made contributions of a non-financial nature was not supported by the evidence. She contended –
(a)no evidence was provided by the husband that he was the primary caregiver and homemaker whereas the wife (so she said) provided documentary verification of that; and
(b)the wife said she was primarily responsible for maintaining the Suburb F property and she did the majority of the work to prepare the Suburb E property for sale.
She said the arbitrator failed to consider and give weight to relevant matters and so the arbitrator’s discretion miscarried. Aside from the sweeping and imprecisely general nature of those contentions, I have addressed how those submissions were wrong in the context of the wife’s 24 October 2022 affidavit.
The husband took issue with the wife’s contentions under Question C. In précis form, he submitted –
(a)the arbitrator found that to varying degrees both parties worked;
(b)the arbitrator observed the witnesses and saw their evidence tested;[12] and
(c)after taking all relevant circumstances into account, the arbitrator’s findings on contributions followed the correct legislative pathway and produced the correct unimpeachable result.
[12] Kirby ACJ in Galea v Galea (1990) 19 NSWLR 263 regarded this as very important, as do I.
I take the view that the 60/40 percentage division was correct. I also take the view that the arbitrator followed the legislative pathway correctly and made correct findings of fact in arriving at the conclusions that were anterior to the percentage division. In my view, the arbitrator’s discretion did not miscarry.
QUESTION D
The precise form of question posed by the wife as Question D was as follows –
D.Did the Arbitrator err in determining the Husband’s entitlement to the [Suburb F] property at 42.5% given the financial relationship had ceased and that Husband had made no financial contribution to $189,000 of the property pool?
In support of her contentions under Question D, the wife submitted that the arbitrator’s reasoning in paragraph 7.57(e) was different to the arbitrator’s reasoning in paragraph 7.6 such that error was thereby manifest. The relevant passage from paragraph 7.57(e) of the arbitrator’s reasons were as follow –
‘while she has had the benefit of living in the [Suburb F] property, she has made signfii8cant (sic) financial contributions to the acquisition and conservation of that property which has enabled an increase in the value of that property which are not matched by the husband, whose only contribution to that property was permitting borrowings to be secured against the [Suburb E] property. As referred to above, she did that while also contributing to the [Suburb E] mortgage.’
The wife contended that the passage just extracted was inconsistent with a passage from paragraph 7.6 of the arbitrator’s reasons. That passage read as follows –
‘other than her continuing to meet the payment of the mortgage payments for the [Suburb F] property (while she was living in the property) and meeting payment of the costs of the property (such as insurance and rates), she does not point to any other contribution that she has made that has caused the increase in value of the property, and it appears that that increase is due to market forces only. In short, the parties have benefited from a rising market.’
It will be immediately noticed that the wife extracted only sanitised aspects of the portion on which she relied rather than the whole paragraph thereby skewing the context of each passage. That said, the wife took issue with the arbitrator’s statement that the parties benefitted from a rising market.
The husband correctly identified that the arbitrator did not make a specific determination about the husband’s entitlement to the Suburb F property of 42.5% and instead awarded a percentage division of the net property pool. That was correct.
The husband submitted, again correctly, that the arbitrator was alive to the requirement for her to consider in detail every facet of the parties’ contributions.
The husband submitted that the wife selectively cherry picked aspects of the two paragraphs cited by her and when viewed properly in their totality there was no conflict of reasoning or inconsistency in it. In that regard, in paragraph 31 of her submissions on behalf of the husband dated 20 January 2023 Ms Frizelle of counsel argued as follows –
The arbitrator rightly identifies “the wife did not point to any other contribution that she has made that has caused the increase in the value of the property, it appears that the increase is due to market forces only, in short the parties have benefited from a rising market. Neither party can claim an increase and while the wife may assert that the increase is not a “fruit of the parties relationship” the [Suburb F] property was not one wholly outside of the parties relationship but, instead, is one to which both parties have made some contributions.”
The case law recognises fortuitous increases in property prices thereby deriving a windfall to the parties.[13]
[13] Jabour v Jabour (2019) 59 Fam LR 475 and In the Marriage of Zappacosta (1976) 2 Fam LR 11,214.
The husband invited me to recognise that the evidence sought to be led before me on this s 13J application about an expenditure of between $15,000 to $20,000 in improvements was not before the arbitrator and that the wife omitted to acknowledge that $108,032.15 was applied from the proceeds of sale of the Suburb E property in reduction of the mortgage debt. Ms Frizelle argued that without the husband’s cooperation in the use of the equity in Suburb E in connection with borrowings for the Suburb F property, the Suburb F property was unlikely to have been purchased.
There is considerable merit in Ms Frizelle’s submissions.
In my view the wife mistook the arbitrator’s findings by asserting (erroneously) that the husband was awarded 42.5% of the Suburb F property. Question D is dismissed. No error was made in the manner asserted.
QUESTION E
The precise wording of this question was as follows –
E.Did the Arbitrator appropriately recognise and consider the relevant section 75(2) factors?
Aside from the extreme vagueness and imprecision with which this question was framed, the wife did little more than put before me submissions advanced by her before the arbitrator. The wife made no attempt to single out a specific subsection of s 75 that she said the arbitrator failed to properly consider. For example, the wife submitted that the husband spent sums on drugs. The arbitrator made findings about that. The wife did not assert that those findings were wrong, contrary to law, against the evidence or against the weight of the evidence. She simply repeated her contentions that she advanced before the arbitrator and which the arbitrator determined.
Several decisions of Australian courts have made statements to the effect that arbitrations are not to be used as dummy runs to subsequent litigation. I outlined them in Vida & Vida.[14] Question E bore all the hallmarks of the wife attempting to put before me under the guise of a “question of law” the same submissions put to but rejected by the arbitrator. So far as assertions about domestic violence were concerned, the arbitrator observed that the Kennon type circumstance did not arise in this case. Ms Frizelle correctly pointed out that domestic violence is not a feature of s 75(2).
[14] [2022] FedCFamC1F 968.
Having considered all the features of s 75(2) the arbitrator provided a modest adjustment in favour of the husband. Those elements were the health, age, employment skills, employment opportunities, the wife’s employment, her ability to contribute to superannuation and who had the care of the children but also the age of the parties and of their own two children. That was an orthodox approach to s 75(2) considerations. I detected no error by the arbitrator.
QUESTIONS F
The precise question posed by the wife was as follows –
F.Was [Mr Keaty] required to include his $40,000 [mobile home] (chattel) in his financial statement?
The wife asserted that the husband did not declare his $40,000 mobile home in his financial statement. She said that such omission “made it appear as if the wife had accommodation moving forward, while the husband did not.”
The husband argued that evidence-in-chief was led in respect of the purchase of the mobile home from the partial property settlement pursuant to which each received $40,000. The husband submitted that the acquisition of the mobile home was in fact disclosed to the wife although it was not listed in the husband’s financial statement and that any such omission of it did not lead the arbitrator into error when assessing contributions or future needs. Ms Frizelle submitted that it was not in dispute that the wife resided in the residential home and that the husband resided in the mobile home he purchased.
The wife made the submissions about the mobile home, not so much as to point to disclosure deficiencies[15] but as to make good her propositions about future needs – at least that is how I construed the two lines of submissions on point. The arbitrator specifically recognised future needs in her s 75 assessment. No error arose.
[15] Paviello & Paviello [2022] FedCFamC1F 592.
QUESTION G
This question was as follows –
G.Was the resulting award fair and reasonable to both parties in all circumstances?
By other words, the wife has under the rubric of this question, invited a reconsideration of the whole of the case to obtain the answer to the question. She asserts that the award is unreasonable. In Sionko & Sionko[16] I held that an award that is unreasonable or plainly unjust is a question of law. I adhere to those views here. But I do not regard the award in this case as being unreasonable or plainly unjust. On that issue Ms Frizelle submitted as follows –
60.I submit, no mistake of law has been demonstrated and essential facts were not ignored. The arbitrator’s findings were based on a detailed examination of all the relevant factors. In my submission, the decision reached, and the Arbitration Award is consistent with the findings of fact and supported by the evidence.
61. In my submission, the arbitrators’ findings were correct, no factual error was identified. I submit, based on the arbitrators’ findings the Arbitration Award is not unreasonable or plainly unjust.
[16] [2022] FedCFamC1F 774 (at [24] and [25]).
In my view those propositions are meritorious. The arbitrator applied the correct statutory process and determined that it was in fact just and equitable to make orders altering the legal and equitable interests in property. That was consonant with the observations of the High Court in Stanford v Stanford.[17]
[17] (2012) 247 CLR 108.
OUTCOME
The wife’s s 13J application dated 24 October 2022 failed. I dismiss it.
COSTS
Any application for costs must be filed and served by noon on 24 April 2023 together with any affidavit in support and written submissions.
Any opposition to any costs application referred to in paragraph 80 above must be filed and served by noon on 22 May 2023 together with any affidavit in opposition and written submissions.
I certify that the preceding eighty-one (81) numbered paragraphs are a true copy of the Reasons for Judgment of the Honourable Justice Wilson. Associate:
Dated: 27 March 2023
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