Nellie & Nellie

Case [2024] FedCFamC1A 171

FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA

(DIVISION 1) APPELLATE JURISDICTION

Nellie & Nellie [2024] FedCFamC1A 171

Appeal from:

Nellie & Nellie (No 2) [2024] FedCFamC1F 198

Nellie & Nellie (No 3) [2024] FedCFamC1F 367
Appeal numbers: NAA 97 of 2024
NAA 141 of 2024
File number: SYC 8520 of 2022
Judgment of: MCCLELLAND DCJ, TREE & ALTOBELLI JJ
Date of judgment: 27 September 2024
Catchwords:

FAMILY LAW – APPEAL – ARBITRATION – Property – Where the appellant seeks to appeal the decision to dismiss his application for review of a registered arbitral award pursuant to s 13J of the Family Law Act 1975 (Cth) – Where the grounds of appeal do not identify any error in respect to a question of law on the part of the primary judge – Where the complaints raised by the appellant merely reflect the submissions made on review before the primary judge – Adequacy of reasons – Where the appellant complains that there was no transcript from the arbitral hearing – Where the appellant was at liberty to supplement that deficiency in the record, but did not do so – Where the absence of transcript is not a passport to a new trial – Appeal dismissed – Appellant to pay the respondent’s costs of the appeal in a fixed sum.

FAMILY LAW – APPEAL – COSTS – Where costs orders were made in the absence of the appellant – Where the appellant appeals those orders – Where it is contended that given the existence of a substantive appeal, it was practically reasonable to request that the appellate court address the primary judge’s costs judgment – Where the appellant has not exhausted all reasonably available remedial options at first instance before appealing the primary judge’s decision – Costs appeal dismissed.  
Legislation:

Family Law Act 1975 (Cth) ss 13E, 13J, 75(2), 79, 117

Federal Circuit and Family Court of Australia (Family Law) Rules 2021 (Cth) rr 10.13, 12.17

Commercial Arbitration Act 1984 (NSW) s 38

Commercial Arbitration Act 2010 (NSW) s 34A
Cases cited:

Allesch v Maunz (2000) 203 CLR 172; [2000] HCA 40

Beale & Harvie [2023] FedCFamC1A 181

Bhatnagar & Riju [2018] FamCAFC 144

Bonnett & Bonnett [2021] FedCFamC1A 95

Bugmy v The Queen (2013) 249 CLR 571; [2013] HCA 37

Byrnes v Brisconnections Management Co Ltd (No 2) [2009] FCA 1432

Day Ford Pty Ltd v Sciacca [1990] 2 Qd R 209

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

Elliott & Hopkins (No 2) (2023) FLC 94-157; [2023] FedCFamC1A 142

Fleming v The Queen (1998) 197 CLR 250; [1998] HCA 68

Housing Commission (NSW) v Tatmar Pastoral Co Pty Ltd and Penrith Pastoral Co Pty Ltd [1983] 3 NSWLR 378

Keaty & Swann [2023] FedCFamC1F 178

Lorde & Chu [2014] FamCAFC 228

Macedonian Orthodox Community Church St Petka Inc v His Eminence Petar The Diocesan Bishop of Macedonian Orthodox Diocese of Australia and New Zealand (2008) 237 CLR…

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AGLC
Nellie & Nellie [2024] FedCFamC1A 171
Case
[2024] FedCFamC1A 171
Decision Date

CaseChat Overview and Summary

This judgment deals with two appeals arising from a family law property settlement dispute. The appellant, Mr Nellie, sought to appeal the dismissal of his application to review an arbitral award, while the second appeal concerned the costs order made by the primary judge following the dismissal of the review application. Both appeals were dismissed. The underlying dispute involved the determination of property settlement between the parties following their separation. The matter was referred to arbitration, and an arbitral award was made. The appellant subsequently applied for a review of the arbitral award, which was dismissed by the primary judge. Mr Nellie lodged two appeals against the primary judge’s decisions.

The court identified several legal issues, primarily concerning the adequacy of reasons provided by the arbitrator, and the appellant’s failure to identify any error in law on the part of the primary judge. The court noted that the appellant’s complaints mirrored the submissions made before the primary judge and did not identify any legal error. Additionally, the court found that the absence of a transcript from the arbitral hearing was not a valid ground for appeal, as the appellant could have supplemented the record but chose not to. The court also examined the costs appeal, noting that the appellant had not exhausted all available remedial options before appealing the costs order.

The court concluded that the primary judge had not erred in dismissing the application for review, as the arbitrator had considered relevant factors in making his decision. The court further determined that the appellant’s complaints about the arbitrator’s reasons were not sufficient grounds for overturning the primary judge’s decision. Regarding the costs appeal, the court held that the appellant had not demonstrated that it was practically reasonable to request the appellate court to address the primary judge’s costs judgment, given the existence of a substantive appeal. The court dismissed both appeals and ordered the appellant to pay the respondent’s costs in a fixed sum of $11,600.

Orders

Orders of the court

NAA 97 of 2024

NAA 141 of 2024

SYC 8520 of 2022

FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA

DIVISION 1 APPELLATE JURISDICTION

BETWEEN:

MR NELLIE

Appellant

AND:

MS NELLIE

Respondent

ORDER MADE BY:

MCCLELLAND DCJ, TREE & ALTOBELLI JJ

DATE OF ORDER:

27 SEPTEMBER 2024

THE COURT ORDERS THAT:

1. Appeal NAA 97 of 2024 is dismissed.

2. Appeal NAA 141 of 2024 is dismissed.

THE COURT FURTHER ORDERS THAT:

3. The appellant is to pay the costs of the respondent in the fixed sum of $11,600.

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).

Part XIVB of the Family Law Act 1975 (Cth) makes it an offence, except in very limited circumstances, to publish an account of proceedings that identify persons, associated persons, or witnesses involved in family law proceedings.

Background

Background to the litigation

This judgment relates to two appeals. The primary appeal (NAA 97 of 2024) concerns the dismissal of an application to review an Arbitral Award pursuant to s 13J of the Family Law Act 1975 (Cth) (“the Act”). The second appeal (NAA 141 of 2024) concerns an order for costs made by the primary judge consequent upon his dismissal of the application for review. For reasons which follow, we have dismissed both appeals.BACKGROUND On 7 August 2023, the parties’ applications for property adjustment orders were referred to private arbitration, by consent, pursuant to s 13E of the Act. On 9 August 2023, those proceedings were transferred to the Federal Circuit and Family Court of Australia (Division 1). On 25 and 26 September 2023, the arbitration was conducted by an appropriately qualified arbitrator. Both parties were represented at the arbitral hearing. On 8 November 2023, the Arbitral Award was published. The arbitrator found that the total value of the parties’ property was $5,024,916, with liabilities amounting to $68,518. Accordingly, the “net asset pool” was calculated to be $4,956,398. Having regard to s 79(4) of the Act, the arbitrator further determined that the contributions of the parties favoured the respondent wife, attributing 78 per cent to her and 22 per cent to the appellant husband. The contribution finding was further adjusted by 2 per cent in favour of the respondent pursuant to those factors set out in s 75(2) of the Act. This resulted in the final distribution of the parties’ property being adjusted, such that 80 per cent was allocated to the respondent and 20 per cent to the appellant. By orders made on 26 March 2024, the primary judge dismissed the appellant’s application for review of the registered Arbitral Award pursuant to s 13J of the Act: Nellie & Nellie (No 2) [2024] FedCFamC1F 198. A review of a registered Award, pursuant to s 13J of the Act, is restricted to questions of law. The primary judge rejected the appellant’s submissions that the arbitrator was in error in respect to the following questions of law:…2. That the Arbitrator was in error in law in failing to provide any or adequate reasons upon determining that [the appellant] was entitled to 20% of the net asset pool of the parties available for distribution (being an amount of $4,956,398) and calculating that 20% of such amount was equivalent to $940,000, whereas 20% of such amount is in fact an amount of $991,279.3. That the Arbitrator was in error in law in failing to provide any or adequate reasons in failing to consider the unchallenged evidence of some nine (9) third-party witnesses as to the contributions which [the appellant] had made through his physical endeavours to the renovation and improvements of properties owned by the parties, and preferring the evidence of [the respondent] as to the extent of such contributions, and substantially disregarding such contributions because [the appellant] was not a qualified tradesperson.4. That the Arbitrator was in error in law in failing to provide any or adequate reasons for his determination that after a period of cohabitation of some 34 years, that the parties respective contributions should favour [the respondent] as to 78% and [the appellant] as to 22%.5. That the Arbitrator was in error in law in determining that as [the appellant] could not satisfactorily account for the expenditure of those monies received by him by way of partial property settlement after the time of separation (a total amount of $200,000), that this would lead to a strong inference that he had lost money gambling during cohabitation, as had been asserted by [the respondent].6. That the Arbitrator was in error in law in his determination of a further adjustment of 2% in favour of [the respondent], to reflect Section 75(2) factors by failing to have regard to and consider all of those relevant factors, which if properly considered, may have led to an adjustment in favour of [the appellant] or alternatively counterbalanced the adjustment he made in favour of [the respondent].…(Appellant’s Amended Response to an Application in a Proceeding dated 14 March 2024)GROUNDS OF APPEAL: NAA 97 OF 2024

Evidence

Evidence Before The Court

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Decision

Reasons for decision

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Ratio Decidendi

Legal Principle Established

Aside from the most exceptional circumstances, such as claims of procedural irregularity in a trial judge’s hearing, the appeal must be contained to those alleged errors that were the focus of the first instance proceedings.[7]CONSIDERATION[7] Metwally v University of Wollongong (1985) 60 ALR 68 at 71.Ground 1 – Failure to consider all s 75(2) factors This Ground of Appeal relates to paragraph 6 of the appellant’s application for review which has been extracted at [8]. Ground 1 is without merit as it is based upon a false premise. At no stage of the proceedings was the appellant “precluded” from asserting that the arbitrator failed to address or had overlooked a relevant s 75(2) factor in determining that there should be a 2 per cent adjustment to the respondent over and above contribution considerations. This is made clear in the judgment of the primary judge (at [52]), where the primary judge includes extracts from [139]–[146] of the Arbitral Award. In those paragraphs, the arbitrator set out a number of s 75(2) factors that he considered to be relevant to his decision. These factors included the age of the parties, the absence of children to the relationship, and significantly, that the respondent deposed to being in poor health whereas the appellant gave no evidence of disability or ill health. As is the case where a judicial officer is presiding, it is unnecessary for an arbitrator who is exercising a discretion, to detail each factor which he or she has found to be relevant or irrelevant, nor is an arbitrator required to make an explicit finding on each disputed piece of evidence.[8][8] Housing Commission (NSW) v Tatmar Pastoral Co Pty Ltd and Penrith Pastoral Co Pty Ltd [1983] 3 NSWLR 378 at 385. It is also of no consequence that the arbitrator did not specifically refer to s 75(2)(b) of the Act,[9] which requires a consideration of “the income, property and financial resources of each of the parties”.[9] Elliott & Hopkins (No 2) (2023) FLC 94-157 at [38]. As noted by counsel for the respondent, a reading of the Arbitral Award as a whole,[10] establishes that the arbitrator was well aware of the parties’ property and financial resources, having determined the balance sheet of the parties’ property and the s 79(4) adjustment that he made. Further, as the primary judge noted at [55]–[56], referencing [156] of the Arbitral Award, the arbitrator implicitly considered s 75(2)(b) of the Act when determining the justice and equity of the overall property adjustment. Accordingly, there was no error on the part of the primary judge in rejecting the assertion that there was an error of law on the part of the arbitrator, as contended at paragraph 6 of the appellant’s review application.[10] Bonnett & Bonnett [2021] FedCFamC1A 95 at [22]. During the course of the appeal, counsel for the appellant suggested that Ground 1 can be construed as an assertion that the primary judge erred by precluding the appellant from asserting error on the part of the arbitrator due to the appellant’s inability to identify such error through “transcript, affidavit evidence, or by way of the arbitrators’ notes” (at [54]). There was no such preclusion. Even if so construed, this Ground of Appeal is without merit.