PALGROVE & PALGROVE - [2020] FCCA 846

FEDERAL CIRCUIT COURT OF AUSTRALIA

PALGROVE & PALGROVE

[2020] FCCA 846

Catchwords:
FAMILY LAW – Where proceedings were referred to arbitration – Application made to discharge the referral to arbitration – allegations of significant family violence – concerns with respect to parties being physically present at the same location – whether it is open to the parties, by consent or otherwise, to withdraw their prior consent to a referral to arbitration and return the matter to Court – is the dispute arbitrable – where public interest in the subject matter or determination of the dispute could render a dispute non-arbitrable – what should occur if the dispute is arbitrable – Order made for the arbitration to proceed by one or both parties attending by video.

Legislation:

Family Law Act 1975 (Cth), ss.13E, 10L

Family Law Regulations 1984 (Cth) r. 67E

Federal Circuit Court of Australia Act 1999 (Cth), ss.66 - 73

Family Law Rules 2004 (Cth), r.26B.34

Cases cited:

Fulham Football Club (1987) Ltd v Richards and another [2012] Ch. 333

Loomis & Pattison [2020] FCCA 345

Applicant:

MR PALGROVE

Respondent:

MS PALGROVE

File Number:

PAC 3736 of 2018

Judgment of:

Judge Harman

Hearing date:

27 March 2020

Date of Last Submission:

27 March 2020

Delivered at:

Parramatta

Delivered on:

27 March 2020

REPRESENTATION

Solicitors for the Applicant:

Mr Skouteris of Andresakis & Associates

Solicitors for the Respondent:

Mr Marando of Marando Solicitors

ORDERS

Pursuant to section 13F of the Family Law Act 1975 I DIRECT that the arbitration of these proceedings is to proceed:
(a)By one or both parties attending by video; and
(b)The parties not being required to be present in the same building or physical location
Note: It is a matter for the Arbitrator to determine whether one party and their counsel are physically present with the Arbitrator and the other attending remotely or whether both parties attend remotely (the latter being particularly attractive in light of the present pandemic).
Each of the parties is to do all things within their power to ensure that the arbitration can be rescheduled and proceed as soon as practicable.
Remove the Application in a Case from the list of cases awaiting hearing.

IT IS NOTED that publication of this judgment under the pseudonym Palgrove & Palgrove is approved pursuant to s.121(9)(g) of the Family Law Act 1975 (Cth).

FEDERAL CIRCUIT COURT
OF AUSTRALIA
AT PARRAMATTA

PAC 3736 of 2018

MR PALGROVE

Applicant

And

MS PALGROVE

Respondent

REASONS FOR JUDGMENT

(As Corrected)

These proceedings come before the Court today with respect to an Application in a Case filed 13 December 2019.
The Application in the Case seeks relief in the following terms:
a)That leave be granted to serve short notice of this application;
b)That all orders made referring this matter for arbitration be discharged.
As would be apparent, in light of the limitations upon referral to arbitration, the substantive proceedings to which the matter relates are financial.
The parties to the proceedings are a husband and wife, the applicant…

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 PALGROVE & PALGROVE

Details

AGLC: Palgrove and Palgrove [2020] FCCA 846
Case: [2020] FCCA 846
Decision Date: 27 March 2020

CaseChat Overview and Summary

In *Palgrove & Palgrove*, heard by Judge Harman, the parties sought to discharge a referral to arbitration in family law proceedings. The application was prompted by allegations of significant family violence and concerns regarding the parties being physically present at the same location. The central question was whether the parties could withdraw their consent to the arbitration referral and return the matter to court, or if the dispute remained arbitrable, particularly where public interest considerations might render it non-arbitrable.

The court considered whether the dispute was arbitrable, noting that public interest could, in some circumstances, render a dispute non-arbitrable. However, the primary focus of the application was on the practicalities of proceeding with the arbitration given the allegations of family violence. The court determined that the dispute was capable of being arbitrated, and the issue then became how to facilitate the arbitration in a manner that addressed the parties' safety concerns.

To resolve the practical difficulties, Judge Harman directed that the arbitration proceed with one or both parties attending by video, and that the parties not be required to be present in the same physical location. The court noted that it was for the Arbitrator to determine the specific arrangements for attendance, such as whether one party and their counsel would be physically present with the Arbitrator while the other attended remotely, or if both parties would attend remotely. The parties were ordered to do all things necessary to ensure the arbitration could be rescheduled and proceed as soon as practicable, and the Application in a Case was removed from the list of cases awaiting hearing.

Orders

Orders of the court

Pursuant to section 13F of the Family Law Act 1975 I DIRECT that the arbitration of these proceedings is to proceed:

(a) By one or both parties attending by video; and

(b) The parties not being required to be present in the same building or physical location

Note: It is a matter for the Arbitrator to determine whether one party and their counsel are physically present with the Arbitrator and the other attending remotely or whether both parties attend remotely (the latter being particularly attractive in light of the present pandemic).

Each of the parties is to do all things within their power to ensure that the arbitration can be rescheduled and proceed as soon as practicable.

Remove the Application in a Case from the list of cases awaiting hearing.

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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