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Keaty & Swann

Keaty & Swann

Case [2023] FedCFamC1F 178 27 March 2023

Judicial Review

Family Law Act 1975 (Cth)

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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

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 Keaty & Swann

Details

AGLC: Keaty & Swann [2023] FedCFamC1F 178
Case: [2023] FedCFamC1F 178
Decision Date

CaseChat Overview and Summary

In the matter of Keaty and Swann, the wife sought a review of the arbitral award under section 13J of the Family Law Act 1975 (Cth). The arbitration, conducted under section 10L, had resulted in a 60/40 division in favour of the wife, adjusted to a 57.5/42.5% division post consideration of section 75(2) factors. The wife, dissatisfied with the outcome, filed a review application on 24 October 2022, later supplemented on 9 January 2023, but without articulating any questions of law or grounds of review. Despite being a litigant in person, the wife was given opportunities to amend her application but did not comply with the court's directions. The court found that the wife's complaints, which ranged from procedural fairness to the correctness of the arbitrator's assessment of contributions, did not meet the threshold for judicial review. The arbitrator had considered a wide array of contributions and statutory factors, and the court held that the award was neither unreasonable nor plainly unjust. The wife's application for review was dismissed.

Wilson J began by noting the procedural history of the case, including the arbitral award's registration and the wife's subsequent review application. The wife, unrepresented, had repeatedly failed to comply with court directions regarding the supplementation of her review application. Despite the absence of any questions of law or grounds of review, the court examined the wife's contentions. The wife challenged various aspects of the arbitral award, including the assessment of contributions, the adjustment under section 75(2), and the consideration of domestic violence. The court found that the arbitrator had correctly applied the relevant statutory considerations and had not erred in making the adjustment under section 75(2) or in considering the wife's role as the primary carer and breadwinner. The wife's complaints about the one-off payment, the consideration of domestic violence, and other aspects of the award were found to be without merit. The court concluded that the arbitral award was a just and equitable division of the parties' assets, and the wife's application for review was dismissed. The wife's application for costs was left to be determined on the papers.

Orders