Paviello & Paviello

Case [2022] FedCFamC1F 592

Federal Circuit and Family Court of Australia

(DIVISION 1)

Paviello & Paviello [2022] FedCFamC1F 592

File number(s): SYC 2323 of 2017
Judgment of: WILSON J
Date of judgment: 2 September 2022
Catchwords: FAMILY LAW – NATIONAL ARBITRATION LIST – application made under s 13J and s 13K to review arbitral award – no ground of review is successfully established nor basis shown under s 13K – application dismissed.
Legislation:

Evidence Act 1995 (Cth) s 128

Family Law Act 1975 (Cth) ss 13J, 13K and 75(2)(o)
Cases cited:

Bacall & Zagar [2020] FamCA 350

Barker v Barker (2007) 36 Fam LR 650

Belding & Belding [2020] FamCA 1027

Bevan & Bevan (2013) 49 Fam LR 387

Black v Kellner (1992) 15 Fam LR 343

Braddon v Braddon (2018) 59 Fam LR 234

Bradshaw v McEwans Pty Ltd (1951) 217 ALR 1

Chan & Lee [2022] FedCFamC1A 85

Chang v Su (2002) 29 Fam LR 406

De Winter v De Winter (1979) 4 Fam LR 583

Deputy Commissioner of Taxation v Shi [2021] HCA 22

Dougherty v Dougherty (1987) 163 CLR 278

Entezam v Devi (No 3) [2021] FamCA 549

Flight v Robinson (1844) 50 ER 9

Girlock (Sales) Pty Ltd v Hurrell (1982) 149 CLR 155

Goh v Ren (2020) 61 Fam LR 508

Griffiths & Griffiths [2022] FedCFamC1F 219

Griffiths & Griffiths (No 2) [2022] FedCFamC1F 379

Gronow v Gronow (1979) 144 CLR 513

Harris v Caladine (1991) 172 CLR 84

Holland v Holland [1918] P 273

Holloway v McFeeters (1956) 94 CLR 470

House v R (1936) 55 CLR 499

In the Marriage of Briese (1985) 10 Fam LR 642

In the Marriage of Giunti (1986) 11 Fam LR 160

In the Marriage of Marinko (1983) 8 Fam LR 849

In the Marriage of Mezzacappa (1987) 11 Fam LR 957

In the Marriage of Morrison (1994) 18 Fam LR 519

In the Marriage of Stein (1986) 11 Fam LR 353

In the Marriage of Suiker (1993) 17 Fam LR 236

In the Marriage of Weir (1992) 16 Fam LR 154

Kannisv Kannis (2002) 30 Fam LR 83

Lord Advocate & the Trustees of the Clyde Navigation v Blantyre (1879) 4 App Cas 770

Mallet v Mallet (1984) 156 CLR 605

Minister for Immigration and Ethnic Affairs v Wu Shan Liang (1996) 185 CLR 259

Norbis v Norbis (1979) 144 CLR 513

Oriolo v Oriolo (1985) 10 Fam LR 665

Ormerod v Todmorden Joint-Stock Mill Co Ltd (1882) 8 QBD 664

Pavic v Pavic [2018] FCCA 3386

R v Watson; ex parte Armstrong (1976) 136 CLR 248

Sharp v Wakefield [1891] AC 173

Stanford & Stanford (2012) 247 CLR 108

Trustees of the Property of Cummins (a bankrupt) v Cummins (2006) 227 CLR 278

Waterman & Waterman [2017] FamCAFC 23

Young v Thomas [1892] 2 Ch 134

Division: Division 1 First Instance
Number of paragraphs: 88
Date of Hearing: 12 July 2022 
Date of last submissions: 2 August 2022
Place: Melbourne
Counsel for the Applicant: Mr J. Morris SC…

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Paviello & Paviello [2022] FedCFamC1F 592
Case
[2022] FedCFamC1F 592
Decision Date

CaseChat Overview and Summary

The case of Paviello & Paviello involved a dispute between the parties, with the primary focus being on the review of an arbitration decision under section 79 of the relevant legislation. The second respondent argued against the review applicant’s claim that it was improper for the arbitrator to consider the husband’s non-disclosure in the assessment of section 75(2) factors and the balancing exercise required by a section 79 application. The second respondent contended that the arbitrator correctly followed the required process, identified the issues in dispute, and that no question of law was raised in the review application. Furthermore, it was argued that the wife’s claims regarding penalties for non-disclosure were incorrect and that the arbitrator’s consideration of the factors did not involve any articulated public policy considerations.

The court had to decide several legal issues, primarily focusing on whether the review applicant had demonstrated that it was improper for the arbitrator to consider the husband’s non-disclosure. The court also needed to determine if the review applicant's arguments about inferences and penalties for non-disclosure were valid. Additionally, the court examined whether the review applicant had correctly identified any question of law in the arbitration process. The second respondent argued that the review applicant’s submissions were not made to the arbitrator and that even if they were considered a question of law, it should be answered in the negative.

The court found that the review under section 13J did not involve a de novo hearing but rather an examination of the evidence against the questions of law posed in the review application. The court held that the review process should examine whether the arbitrator's determination on the section 79 application was just and equitable. The court noted that there was no plain wording in the legislation to suggest that parties who chose arbitration would have compromised their remedies. Therefore, the court concluded that the matters for examination by the reviewing body should be the same whether the determination was arbitral or judicial. The court ultimately decided that the review applicant had not demonstrated that it was improper for the arbitrator to consider the husband’s non-disclosure.

The final orders of the court were that the review application was dismissed, and the arbitral award was upheld. The court found no merit in the review applicant’s arguments and concluded that the arbitrator had correctly considered the relevant factors and issues. The decision confirmed that the review process under section 13J is not a de novo hearing but rather an examination of the evidence against the questions of law.

Orders

Orders of the court

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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

Counsel for the second respondent argued that the review applicant failed to demonstrate that it was not proper for the arbitrator to consider the husband’s non-disclosure when assessing relevant s 75(2) factors and when undertaking the balancing exercise that a s 79 application calls for. In addition, counsel for the second respondent submitted that – (a)at paragraph 70 of his reasons the arbitrator identified, correctly, the process that he was required to follow in determining a s 79 application;(b)the so-called public policy considerations that were allegedly involved in any consideration of s 75(2) factors were not articulated;(c)the wife’s assertions that the court exacts penalty for non-disclosure is wrong;(d)the arbitrator correctly identified the issues in dispute on the balance sheet in paragraph 89 and following of the reasons for the arbitral award; (e)no question of law was enlivened in ground 1;(f)the review applicant’s submissions about inferences were not made to the arbitrator; and (g)even if the matter agitated in ground 1 could be correctly described as a question of law, it should be answered in the negative.consideration of ground 1 At the outset it is necessary to identify the task borne by a review applicant on a review under s 13J. As the passages earlier appearing disclose, I entertain doubts (although I do not decide the point) that the statement about the operation of s 13J in Braddon and Pavic are correct. If they are later found to be wrong, then they must be overruled. The “review” to which s 13J is directed does not involve a hearing de novo as does a review of a registrar’s decision, it seems to me. That is in part the function of the different wording of the relevant legislative provisions and of the observations of the High Court in Harris v Caladine.[36] As I have observed above, whether the content of a “review” is the same as an “appeal” remains for another day. That said, it seems to me to be unlikely that the legislature is to be taken to have intended that an arbitrator to whom a s 79 application is referred for determination in pursuance of s 13E is to apply different considerations to those a judge must apply when determining a s 79 application. So, when a dissatisfied party takes the s 79 determination further, whether to a single judge in the case of an arbitral determination or to a full court in the case of a judicial determination, the matters falling for examination by the reviewing body should be the same. Were it otherwise, a party to an arbitration would be penalised for selecting arbitration because by that selection of arbitration, the parties to arbitration would somehow have compromised their remedies consequent upon a s 79 determination. I am unable to see that such a result would follow in the absence of very plain wording in the legislation. No such wording appears. In my view it follows that the “review” in s 13J involves an examination of the evidence that was before the arbitrator against the questions of law posed in the review application so as to determine whether the arbitrator’s determination on the s 79 application was just and equitable.[36] (1991) 172 CLR 84.