McLaughlin & McLaughlin

Case [2023] FedCFamC2F 1160


FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA

(DIVISION 2)

McLaughlin & McLaughlin [2023] FedCFamC2F 1160

File number(s): SYC 3839 of 2022
Judgment of: DEPUTY CHIEF JUDGE MCCLELLAND
Date of judgment: 5 September 2023
Catchwords: FAMILY LAW – REVIEW OF ARBITRAL AWARD – Application for review pursuant to s 13J and 13K of the Family Law Act 1975 (Cth) – Where, pursuant to s 13K of the Family Law Act 1975 (Cth), the Federal Circuit and Family Court of Australia (Division 2) has no jurisdiction to hear a review of an arbitral award registered in the Federal Circuit and Family Court of Australia (Division 1) – Review proceedings conducted pursuant only to s 13J of the Family Law Act 1975 (Cth) – Where the applicant wife has failed to particularise the questions of law upon which the review is sought – General discussion of matters constituting a question of law – Ground of procedural fairness advanced in arbitrator’s refusal of the wife’s application to adjourn the arbitration proceedings to peruse husband’s late filed evidence – Both parties mutually agreed for late filing and service of material – No error established – Grounds advancing questions of fact – An arbitral award is not reviewable in respect to a question of fact – No error established on the part of the arbitrator – Review dismissed – Written submissions as to costs.
Legislation:

Commercial Arbitration Act 1984 (NSW)

Evidence Act 1995 (Cth) s 50

Family Law Act 1975 (Cth) Pt IIIB, Pt VIII, ss 13A, 13E, 13H, 13J, 13K, 75, 79

Federal Circuit and Family Court of Australia Act 2021 (Cth) ss 67, 68

International Arbitration Act 1974 (Cth)

Family Law Regulations 1984 (Cth) reg 67I(2)

Federal Circuit and Family Court of Australia (Family Law) Rules 2021 (Cth) r 14.07

UNCITRAL Model Law on International Commercial Arbitration 1985

Cases cited:

Anson & Meek (2017) FLC 93-816; [2017] FamCAFC 257

Assistant Commissioner Michael James Condon v Pompano Pty Ltd (2013) 252 CLR 38; [2013] HCA 7

Australian Broadcasting Tribunal v Bond (1990) 170 CLR 321; [1990] HCA 33

Australian Coal and Shale Employees’ Federation v The Commonwealth (1953) 94 CLR 621; [1953] HCA 25

Australian Gas Light Co v The Valuer-General (1940) 40 SR (NSW) 126

Bahonko v Sterjov (2008) 166 FCR 415; [2008] FCAFC 30

Bonnett & Bonnett [2021] FedCFamC1A 95

Dickons v Dickons (2012) 50 Fam LR 244; [2012] FamCAFC 154

Dietrich v the Queen (1992) 177 CLR 292; [1992] HCA 57

Director-General, Department of Ageing, Disability and Home Care v Lambert (2009) 74 NSWLR 523; [2009] NSWCA 102

Edwards (Inspector of Taxes) v Bairstow [1956] AC 14

Edwards v Noble (1971) 125 CLR 296; [1971] HCA 54

Fabrizi v Grasso (Jnr) as the Legal Personal Representative of Mr Grasso (deceased) (No 2) [2022] WASCA 27

FJ & PN Curran Pty Ltd v Almond Investors Land Pty Ltd [2019] VSCA 236

Gronow & Gronow (1979) 144 CLR 513; [1979] HCA 63

Hancock Prospecting Pty…

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AGLC
McLaughlin & McLaughlin [2023] FedCFamC2F 1160
Case
[2023] FedCFamC2F 1160
Decision Date

CaseChat Overview and Summary

The Federal Circuit and Family Court of Australia (Division 2) considered an application for review of an arbitral award in the case of McLaughlin & McLaughlin. The applicant, Ms McLaughlin, sought to review an arbitral award registered in the Federal Circuit and Family Court of Australia (Division 1). The primary issue before the court was whether the Federal Circuit and Family Court of Australia (Division 2) had jurisdiction to review the arbitral award under sections 13J and 13K of the Family Law Act 1975 (Cth). Additionally, the court needed to determine whether the applicant had adequately particularised the questions of law upon which the review was sought and if any errors were established in the arbitral award.

The court found that the Federal Circuit and Family Court of Australia (Division 2) lacked jurisdiction to hear a review of the arbitral award registered in the Federal Circuit and Family Court of Australia (Division 1) under section 13K of the Family Law Act 1975 (Cth). The review was conducted solely pursuant to section 13J. The court further determined that the applicant had failed to particularise the questions of law upon which the review was sought. The grounds of review advanced by the applicant were either matters of fact or did not constitute questions of law. The court highlighted that an arbitral award is not reviewable in respect to a question of fact and found no error established on the part of the arbitrator concerning the procedural fairness argument. Consequently, the review was dismissed.

The court ordered that the applicant's application for review is dismissed. Additionally, the parties were directed to file written submissions regarding the issue of costs, with the applicant to submit no more than five pages and the respondent to submit a reply, if desired, of no more than two pages. The form of the order was subject to entry in the Court’s records and potential review for minor errors or variations.

Orders

Orders of the court

SYC 3839 of 2022

FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 2)

BETWEEN:

MS MCLAUGHLIN

Applicant

AND:

MR MCLAUGHLIN

Respondent

ORDER MADE BY:

DEPUTY CHIEF JUDGE MCCLELLAND

DATE OF ORDER:

5 SEPTEMBER 2023

THE COURT ORDERS THAT:

1. The wife’s application for review contained in her Application in an Arbitration filed 14 June 2023 is dismissed.

2. Within 14 days of the date of these orders, the parties are to file written submission of no more than five (5) pages in length in respect the issue of costs.

3. Within a further 7 days of receipt of those submissions the parties may, if they wish, file written submissions of no more than two (2) pages in reply.

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.

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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