Nellie & Nellie (No 2)

Case [2024] FedCFamC1F 198

FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA

(DIVISION 1)

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

File number: SYC 8520 of 2022
Judgment of: CAMPTON J
Date of judgment: 26 March 2024
Catchwords: FAMILY LAW – ARBITRATION – APPLICATION FOR REVIEW OF A REGISTERED ARBITRAL AWARD – Where the husband seeks to review the registered arbitral award pursuant to s 13J of the Family Law Act 1975 (Cth) – Where the arbitrator made a minor mathematical error – Where the husband’s complaints on review do not in themselves raise questions of law – Construction of questions of law as to whether the arbitrator gave any reasons or adequate reasons, whether an inference is available on the evidence, and as to whether a s 75(2) factor was taken into account – Application dismissed.
Legislation:

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

Federal Circuit and Family Court of Australia 2021 (Cth) ss 25 and 149

Cases cited:

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

Bennett and Bennett (1991) FLC 92-191; [1990] FamCA 148

Burke & Burke (1981) FLC 91-055; [1981] FamCA 44

CDJ v VAJ (1998) 197 CLR 172; [1998] HCA 67

Crescent Petroleum Company International Limited and Crescent Gas Corporation v. National Iranian Oil Company (PCA No. 2009-20)

De Winter and De Winter (1979) FLC 90-605

Finelvet AG v Vinava Shipping Co Ltd (The ‘Chrysalis’) [1983] 1 WLR 1469

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

Hedlund & Hedlund (2021) 64 Fam LR 458; [2021] FedCFamC1A 84

Housing Commission NSW v Tatmar Pastoral Co. Pty Ltd (1983) 54 ALR 155

Keaty & Swann [2023] FedCFamC1F 178

Lane & Nichols [2016] FamCAFC 234

McLaughlin & McLaughlin [2023] FedCFamC2F 1160

Nellie & Nellie [2023] FedCFamC1F 1050

Nevins & Urwin (2022) FLC 94-084; [2022] FedCFamC1A 57

Pollardv RRR Corporation Pty Ltd [2009] NSWCA 110

Simmonds v Gammell [2016] EWHC 2515 (Comm)

Sun Alliance Insurance Ltd v Massoud [1989] VR 8

TCL Air Conditioner (Zhongshan) Co Ltd v Judges of the Federal Court of Australia (2013) 251 CLR 533; [2013] HCA 5

Vida & Vida [2023] FedCFamC1A 175

Westport Insurance Corporation v Gordian Runoff Ltd [2011] 244 CLR 239; [2011] HCA 37

Wright & Rebane (2021) 64 Fam LR 287; [2021] FedCFamC1F 154

Yesodei Hatorah College Inc v The Trustees of the Elwood Talmud Torah Congregation (2011) 38 VR 394; [2011] VSC 622

Division: Division 1 First Instance
Number of paragraphs: 59
Date of hearing: 21 March 2024
Place: Sydney
Counsel for the Applicant: Mr Hodgson
Counsel for the Respondent: Ms Tabbernor
Solicitor for the Respondent: Bay Legal

ORDERS

SYC 8520 of 2022

FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 1)
BETWEEN:

MR NELLIE

Applicant
AND:

MS NELLIE

Respondent

ORDER MADE BY:

CAMPTON J

DATE OF ORDER:

26 MARCH 2024

THE COURT ORDERS THAT:

1.Paragraph 1(d) of the arbitral award made 8 November 2023 and registered in this Court on 8…

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AGLC
Nellie & Nellie (No 2) [2024] FedCFamC1F 198
Case
[2024] FedCFamC1F 198
Decision Date

CaseChat Overview and Summary

In this case, the husband filed an application for review of a registered arbitral award under section 13J of the Family Law Act 1975 (Cth). The husband sought to challenge the award made in a property settlement dispute between him and his wife. The arbitration was conducted before Mr B, and the arbitral award was registered on 8 December 2023. The husband filed an application for review on 8 November 2023, but it was dismissed on 21 November 2023. The husband then sought review of the registered arbitral award, raising issues of law concerning the arbitrator’s reasoning and the consideration of certain factors.

The legal issues before the court were whether the husband's complaints constituted questions of law warranting review, specifically regarding the arbitrator's failure to consider certain factors, and whether the husband's objections to the arbitral award raised questions of law that warranted intervention. The court considered whether the husband's complaints about the arbitrator's failure to address certain factors constituted questions of law. The court found that the husband's complaints did not raise questions of law that warranted review, as they did not demonstrate a substantial miscarriage of justice or an error in the application of the law. The court also noted that the arbitral award's mathematical error did not impact the ultimate decision and did not occasion a substantial miscarriage of justice.

The court dismissed the husband’s application for review, holding that the husband had not established that the arbitral award contained errors of law that warranted intervention. The court found that the husband’s complaints did not identify any substantial errors in the application of the law or demonstrate a miscarriage of justice. The court concluded that the arbitral award should be affirmed. The court ordered the amendment of a specific paragraph of the arbitral award and set a timetable for any costs applications. The husband’s application for review was dismissed, and the costs judgment was reserved for chambers.

The court’s decision highlights the limited grounds for reviewing arbitral awards under section 13J of the Family Law Act. The court emphasised that arbitral awards are intended to provide a final and efficient resolution to disputes. Review is only warranted in cases of substantial miscarriage of justice or errors in the application of the law. The court found that the husband’s complaints did not meet these criteria, and the arbitral award was affirmed. The court also highlighted the importance of considering the totality of the arbitral award and the context in which errors or omissions occur.

Orders

Orders of the court

SYC 8520 of 2022

FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 1)

BETWEEN:

MR NELLIE

Applicant

AND:

MS NELLIE

Respondent

ORDER MADE BY:

CAMPTON J

DATE OF ORDER:

26 MARCH 2024

THE COURT ORDERS THAT:

1. Paragraph 1(d) of the arbitral award made 8 November 2023 and registered in this Court on 8 December 2023 be amended to delete “$940,000.00 to the Applicant less any and all interim property settlement sums already paid to him in these proceedings, being $200,000” and inserting in lieu thereof “$768,256 to the Applicant”.

2. The Response to an Application in a Proceeding of the husband filed 8 November 2023, as amended by way of Exhibit 1, otherwise be dismissed.

3. On or before 15 April 2024, the wife file and serve any minute of order as to costs, affidavit in support thereof, and written submissions of no more than three pages.

4. In the even the wife complies with Order 3, the husband on or before 29 April 2024, file and serve any minute of order as to costs, affidavit in support thereof, and written submissions of no greater than three pages.

5. The costs judgment is otherwise reserved to chambers.

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

For the reasons that follow the husband’s Response to an Application in a Proceeding, save for an amendment to paragraph 1(d), is dismissed, and orders will be made for the filing of material to progress any costs application.BACKGROUND By way of an Initiating Application filed 30 November 2022 in the Federal Circuit and Family Court of Australia (Division 2), the husband sought orders for the adjustment of property pursuant to s 79 of the Act. By way of a Response to Final Orders filed 2 February 2023, the wife sought different orders as to the adjustment of that property. A consent order was made pursuant to s 13E of the Act on 7 August 2023 referring the Pt VIII matter to arbitration. On 9 August 2023, the matter was transferred to the Federal Circuit and Family Court of Australia (Division 1) and was placed in the National Arbitration List. The arbitration was conducted on 25 and 26 September 2023 before Mr B (“the Arbitrator”). There was no transcript of the hearing before the Arbitrator. The Arbitral Award (“the Arbitral Award”) was dated and published on 8 November 2023 (Exhibit 2). The husband filed an Application in a Proceeding on 8 November 2023, sealed by the Court on 16 November 2023, seeking, amongst other things, an order restraining the wife from seeking to register the Arbitral Award. On 21 November 2023, that Application in a Proceeding was withdrawn and dismissed on a without admissions basis. Other directions were made. On 21 November 2023, the wife filed a Form 8 – Application to register the Arbitral Award. The husband initially opposed the registration of the Arbitral Award. The Arbitral Award was registered on 8 December 2023 and the husband’s objection to registration was dismissed. These reasons assume familiarity with that determination (see Nellie & Nellie [2023] FedCFamC1F 1050).JURISDICTION – THE HUSBAND’S APPLICATION FOR REVIEW PURSUANT TO S 13J Section 13J of the Act provides:Federal Circuit and Family Court of Australia (Division 2) can review registered awards(1)A party to a registered award made in section 13E arbitration or relevant property or financial arbitration may apply for review of the award, on questions of law, by:(a) the Federal Circuit and Family Court of Australia (Division 2); or(b) a single judge of the Family Court of a State.Note: There may be Rules of Court providing for when, and how, an application for review of the award can be made (see paragraph 123(1)(sf)).(2)On a review of an award under this section, the judge or Federal Circuit and Family Court of Australia (Division 2) may:(a)determine all questions of law arising in relation to the arbitration; and(b)make such decrees as the judge or Federal Circuit and Family Court of Australia (Division 2) thinks appropriate, including a decree affirming, reversing or varying the award. Both parties agreed that this Court has jurisdiction to hear and determine the husband’s application for review pursuant to s 13J of the Act. It is trite to record that parties cannot vest the Court by agreement with jurisdiction. The Court either has jurisdiction or it does not. I am satisfied that this Court has jurisdiction to hear and determine the husband’s Application for Review pursuant to s 13J of the Act for the following reasons.

Evidence

Evidence Before The Court

Full text does not contain this section.

Decision

Reasons for decision

If this conclusion is in error, the question becomes whether this answer, if achieved by the husband, is material to the ultimate decision and occasioned a “substantial miscarriage of justice” as found in Lane & Nichols [2016] FamCAFC 234. The approach reinforces the High Court’s reasoning that arbitral awards are an efficient means of resolving disputes with certainty and finality (TCL Air Conditioner (Zhongshan) Co Ltd v Judges of the Federal Court of Australia (2013) 251 CLR 533 at [105]). The differential generated by way of the adjustment to the contribution finding is within a reasonable range of the s 79 discretion exercised by the Arbitrator and does not create a substantial miscarriage of justice. Therefore, I would not be satisfied that, even if this question is answered in the husband’s favour, that intervention on review is justified. The Arbitral Award would be affirmed.CONCLUSION For all the above reasons, the Application in an Arbitration, save the amendment to paragraph 1(d) of the determination in the registered Arbitral Award pursuant to the slip rule, will be dismissed. As to costs, it was agreed at the conclusion of the hearing that if any party sought to make an application for costs, directions would be made as to a timetable for the filing any other evidence as to costs and written submissions, with costs then being reserved to be determined in chambers. Such orders will be made.

Ratio Decidendi

Legal Principle Established

The subject matter of this complaint is the failure of the Arbitrator to consider s 79(4)(e), which in turn identifies s 75(2)(b) of the Act in the adjustments to the contribution findings. Those sections are as follows:79 Alteration of property interests…(4) In considering what order (if any) should be made under this section in property settlement proceedings, the court shall take into account:…(e)the matters referred to in subsection 75(2) so far as they are relevant; and…75 Matters to be taken into consideration in relation to spousal maintenance…(2) The matters to be so taken into account are:…(b) the income, property and financial resources of each of the parties and the physical and mental capacity of each of them for appropriate gainful employment; and… After assessing contributions as to 78 per cent in favour of the wife and 22 per cent to the husband, the Arbitral Award records:Subsection 75(2) factors139. There are no children of the relationship.140. The Husband was born [in] 1945. He is therefore 78 years old.141. The Wife was born [in] 1948. She is 75 years old.142. The Husband gives no evidence of disability or ill health.143.By comparison, the Wife deposes that she is in poor health. She had been diagnosed with [medical conditions], requiring regular surgery and hospitalisation. She suffers from [several medical conditions and symptoms].144.As a result of her compromised immune system, the Wife is prone to infections, and has suffered from constant […] infections requiring visits to her GP.145.The Wife has [had surgeries], causing restrictions, pain, discomfort and pain, requiring analgesics, sleep medication and injections every six months.146.I am satisfied that a 2% adjustment in the Wife’s favour is appropriate for subsection 75(2) issues, which is the amount claimed by the Wife. The reasons do not record any submission made on behalf of the husband during the arbitration as to what adjustment, if any, ought to be made to the contribution findings. The husband prosecutes the review. He bears the onus to establish the relevant foundations to ground the question of law he poses. On the hearing of the review, the husband did not identify by way of transcript, affidavit evidence, or by way of the arbitrators’ notes, any submission he made as to the subject matter of complaint by way of this question. The material on review suggests this is a belated formulation of a question of law constructed by the husband. The husband did not identify evidence of a failure of Arbitrator to respond to, or engage with, a substantial and clearly articulated argument on this subject matter advocated by him during the arbitration hearing. Caution ought to be undertaken on review in circumstances where it is unknown if the subject matter of this complaint has simply not been addressed or has been overlooked. There is no suggestion that the husband did not have an adequate opportunity to make such submission as he considered appropriate at the arbitration as to any relevant s 79 consideration.