Rajavade & Rajavade
[2023] FedCFamC1F 32
FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA
(DIVISION 1)
Rajavade & Rajavade [2023] FedCFamC1F 32
File numbers PAC 2172 of 2022 and PAC 1041 of 2019 Judgment of WILSON J Date of judgment 3 February 2023 Catchwords FAMILY LAW – NATIONAL ARBITRATION LIST – cross applications – husband seeking orders setting aside the arbitral award under s 13K(2)(a) – husband relying on fraud – no evidence of fraud – none particularised – application dismissed.
FAMILY LAW – NATIONAL ARBITRATION LIST – wife seeking orders for the enforcement of arbitral award – almost 20 months passing since the making of the award – orders under s 106A made.
FAMILY LAW – NATIONAL ARBITRATION LIST – COSTS – orders made for affidavits and submissions to be filed on costs.
Legislation Family Law Act 1975 (Cth) ss 13F, 13K(1)-(2), 75(2)(o), 79(2)&(4) and 106A
Family Law Regulations 1984 regulation 67P
Federal Circuit and Family Court of Australia (Family Law) Rules rule 13.04
Cases cited Angelides v James Stedman Henderson’s Sweets Ltd (1927) 40 CLR 43
Associated Leisure Ltd (Phonographic Equipment Co Ltd) v Associated Newspapers Ltd [1970] 2 All ER 754
Bacall & Zagar [2020] FamCA 350
Bakalov & Bakalov [2021] FedCFamC1F 161
Banque Commerciale SA, En Liquidation v Akhil Holdings Ltd (1990) 169 CLR 279
Barker v Barker (2007) 36 Fam LR 650
Black v Kellner (1992) 15 Fam LR 343
Chang v Su (2002) 29 Fam LR 406
Davy v Garrett (1877) 7 Ch D 473
Derry v Peek [1889] AC 337
Downs Distributing Co Pty Ltd v Associated Blue Star Stores Pty Ltd (in liq) (1948) 76 CLR 463
Entezam v Devi (2021) 62 Fam LR 637
Ex parte James; Re Cordon (1874) LR 9 Ch App 609
Flight v Robinson (1844) 50 ER 9
Ghazal v Government Insurance Offıce of New South Wales (1992) 29 NSWLR 336
Goodridge v Beadle (2017) 57 Fam LR 425
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
Kan v Aamer (2020) 63 Fam LR 198
Kannis v Kannis (2002) 30 Fam LR 83
Krakowski v Eurolynx Properties Ltd (1995) 183 CLR 563
Lazarus Estates Ltd v Beasley [1956] 1 QB 702
Medcalf v Mardell [2002] 3 All ER 721
Monte & Monte [1986] FamCA 1
Nocton v Lord Ashburton [1914] AC 932
Oriolo v Oriolo (1985) 10 Fam LR 665
Paviello & Paviello [2022] FedCFamC1F 592
Permanent Trustee Australia Ltd v FAI General Insurance Co Ltd (in liq) (2003) 214 CLR 514
Perpetual Trustees Victoria Ltd v Dunlop [2009] VSC 331
Protean (Holdings) Ltd v American Home Assurance Co [1985] VR 187
Reddaway v Banham [1896] AC 199
Retailers Association of Queensland Ltd v Queensland Retail Traders’ Association of Grocers, Drapers and General Stores [1955] St R Qd 369
SZFDE v Minister for Immigration and Citizenship (2007) 232 CLR 189
Wallingford v Mutual Society (1880) 5 App Cas 685
Waterman & Waterman [2017] FamCAFC 23
White Industries (Qld) Pty Ltd v Flower & Hart (a firm) (1998) 29 ACSR 21
Division Division 1 First Instance Number of paragraphs 67 Date of last submission 17 November 2022 Date of hearing 22 August 2022, 5 October 2022 and 17 November 2022 Place Melbourne Solicitor for the applicant Huk Legal Services Pty Ltd Solicitor for the respondent Harish Prasad & Associates ORDERS
PAC 2172 of 2022 FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 1)
BETWEEN MR RAJAVADE
Applicant
AND MS RAJAVADE
Respondent
order made by
WILSON J
DATE OF ORDER
3 February 2023
THE COURT ORDERS THAT
1.The husband’s application dated 23 March 2022 to set aside the arbitral award under s 13K(2)(a) is dismissed.
2.Any application for costs must be brought by an application in a proceeding under the Federal Circuit and Family Court of Australia (Family Law) Rules 2021 by noon on 17 February 2023.
3.Any affidavit in support of costs must be filed and served by noon on 24 February 2023.
4.Any affidavit in opposition to any affidavit filed in support of costs must be filed and served by noon on 3 March 2023.
5.Any submissions in relation to costs must be filed and served by noon on 10 March 2023.
6.The question of costs will be decided on the papers subsequent to 10 March 2023.
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.
IT IS NOTED that publication of this judgment by this Court under a pseudonym has been approved pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth).
REASONS FOR JUDGMENT
WILSON J
INTRODUCTION
Pursuant to orders made by his Honour Judge Myers on 23 November 2020, the parties’ arbitrator made the award in the arbitration in this proceeding on 23 June 2021 which award, after registration on 12 July 2021, the wife sought orders enforcing and the husband sought orders setting aside.
In support of the husband’s contentions that the award be set aside the husband relied on points of claim dated 24 August 2022 ordered by consent on 22 August 2022. In essence, the husband asserted that –
(a)his previous legal representatives had engaged in fraud;
(b)his previous legal representatives did not follow his instructions;
(c)multiple bank transactions were not disclosed; and
(d)the award is unjust and unfair.
He relied on s 13K(2)(a) of the Family Law Act.
In the wife’s application for enforcement, she sought orders enforcing paragraph 2.1 and 2.2 of the arbitrator’s award. Those portions of the award were as follows –
2. That within two (2) months from the date of the registration of this Award the Applicant Husband (“the Husband”) and the Respondent Wife (“the Wife”) do all things and sign all documents necessary to cause the following simultaneously.
2.1. The Husband transfer to the Wife all of this right title and interest in the property at [F Street, Suburb G] in the State of NSW (“the [Suburb G] property”).
2.2.Discharge of all mortgages and encumbrances presently registered over the [Suburb G] property at the cost of the Wife such that the Husband shall sign all documents presented to the Husband by the Wife and the Wife shall do all other things necessary to cause such discharge.
As these reasons record –
(a)the husband’s application under s 13K(2)(a) failed; and
(b)the wife’s enforcement application succeeded.
THE HUSBAND’S APPLICATION
The husband’s application in an arbitration was bought pursuant to three paragraphs in his document dated 23 March 2022. It provided as follows (verbatim) –
1.that there is an error of law in the arbitration award dated 23 June 2021;
2.that the arbitration award dated 23 June 2021 be set aside;
3.that the court consider and determine the outstanding property matters in dispute between the parties in accordance with s. 79(4) Family Law Act.
In early appearances before me, the husband’s representative told me the husband would rely on grounds of fraud in seeking to set aside the arbitral award. In those circumstances I required the husband to file and serve points of claim. He did. It was prepared by his current solicitor. Bearing in mind that allegations of fraud ordinarily require precision of pleading,[1] none was provided by the husband in his points of claim.
[1] Krakowski v Eurolynx Properties Ltd. (1995) 183 CLR 563 at 573, 130, Perpetual Trustees Victoria Ltd v Dunlop [2009] VSC 331, Permanent Trustee Australia Ltd v FAI General Insurance Co Ltd (in liq) (2003) 214 CLR 514 (McHugh, Kirby and Callinan JJ), Ex parte James; Re Cordon (1874) LR 9 Ch App 609, Davy v Garrett (1877) 7 Ch D 473, Wallingford v Mutual Society (1880) 5 App Cas 685, Reddaway v Banham [1896] AC 199, Associated Leisure Ltd (Phonographic Equipment Co Ltd) v Associated Newspapers Ltd [1970] 2 All ER 754, Medcalf v Mardell [2002] 3 All ER 721, Angelides v James Stedman Henderson’s Sweets Ltd (1927) 40 CLR 43, Protean (Holdings) Ltd v American Home Assurance Co [1985] VR 187, Banque Commerciale SA, En Liquidation v Akhil Holdings Ltd (1990) 169 CLR 279, White Industries (Qld) Pty Ltd v Flower & Hart (a firm) (1998) 29 ACSR 21, Ghazal v Government Insurance Offıce of New South Wales (1992) 29 NSWLR 336, Retailers Association of Queensland Ltd v Queensland Retail Traders’ Association of Grocers, Drapers and General Stores [1955] St R Qd 369 and Downs Distributing Co Pty Ltd v Associated Blue Star Stores Pty Ltd (in liq) (1948) 76 CLR 463.
It is utile to set out the allegations in the husband’s points of claim. In it he described himself as the applicant and the wife as the respondent. He alleged as follows (with errors in the original) –
1.that the applicant has applied to set aside the arbitration award.
2.the arbitration award was obtained by means of the non-disclosure of financial information and suspicious transactions that is very big material relevant to determination.
3.the arbitration award partially ignored the forensic report of banking transactions that leads to very unjust outcome of the proceedings.
4.the arbitration award was agreed without the full consent of the applicant as the applicant was not fully briefed about the antecedents and outcome of the award.
5.the applicant believes that the arbitration award was based on fraudulent act on the part of previous lawyers.
6.the applicant believes that the respondent was in full control of all the financial matters due to limited literacy of the applicant and there have been fraudulent bank transactions by the respondent.
7.the applicant believes that the applicant’s lawyers did not follow the instructions.
8.that the applicant believes that there are multiple bank transaction not disclosed and analysed and it requires court attention for the sake of justice and there are multiple transactions and money flow to the bank accounts need to be addressed and requires further forensic analysis.
9.that the applicant is in possession of all the relevant documents in lieu of all the property settlement and other ancillary transactions that are very relevant and needs the attention of the Family Court to initiate the de novo proceedings for fair treatment.
10.that the applicant believes that the respondent wife did illicit and suspicious and unauthorised transactions from the bank accounts without the applicant’s consent for their personal pursuits and ulterior motives that requires court urgent attention
11.the arbitration award made the wealth/property distribution without considering the real contributions and other financial realities, hence is unjust and unfair. The award totally ignored the financial and non-financial contributions made by the applicant and unjust treatment/distribution of assets.
12.that the applicant is in a very good and stable mental position to let the court of law apprise about the whole episode of erroneous arbitration award obtained.
13.that the applicant does believe that the distribution of assets should have been dealt with under the family law as requested in the ancillary application.
On behalf of the wife, she relied on a response to the points of claim dated 31 August 2022. In it she took issue with the husband’s failure to provide particulars of the fraud alleged as well as contending that s 13K of the Family Law Act had not been properly engaged. In her case outline dated 28 September 2022 the wife advanced other contentions that I have addressed below.
A LOT OF AFFIDAVITS
Both parties adduced a large amount of affidavit material. Not all of it was purposeful on the parties’ respective applications. The husband relied on his affidavits made 1 June 2022, 28 July 2022, 19 October 2022 as well as on written submissions made on 15 August 2022 and 28 September 2022.
The wife relied on her affidavit made 8 June 2022, on her solicitor’s affidavit made 5 July 2022, and on her further affidavit made 27 October 2022.
In the course of addressing the husband’s assertions in relation to s 13K, I have considered the matters raised in his various affidavits.
STATUTORY FRAMEWORK
In this case the husband applied to set aside the arbitrator’s award by invoking s 13K. Under s 13K(1) the court is empowered to make a decree affirming, reversing or varying the award only if satisfied that one of the four provisions of s 13K(2) apply. The husband purported to invoke s 13K(2)(a).
Section 13K(1) is as follows –
(1) If an award made in section 13E arbitration or relevant property or financial arbitration, or an agreement made as a result of such arbitration, is registered in:
(a) the Federal Circuit and Family Court of Australia (Division 1); or
(b) the Federal Circuit and Family Court of Australia (Division 2); or
(c) a Family Court of a State;
the court in which the award is registered may make a decree affirming, reversing or varying the award or agreement.
Section 13K(2) is as follows –
(2)The court may only make a decree under subsection (1) if the court is satisfied that:
(a)the award or agreement was obtained by fraud (including non-disclosure of a material matter); or
(b) the award or agreement is void, voidable or unenforceable; or
(c)in the circumstances that have arisen since the award or agreement was made it is impracticable for some or all of it to be carried out; or
(d)the arbitration was affected by bias, or there was a lack of procedural fairness in the way in which the arbitration process, as agreed between the parties and the arbitrator, was conducted.
As is evident from a simple reading of s 13K(2)(a), the fraud to which s 13K(2)(a) is directed may include “non-disclosure of a material matter” in obtaining the award.
In his points of claim, the husband expressly or impliedly asserted the existence of fraud in paragraphs 2, 5, 6, 8 and 10. The wife provided specific responses to each assertion.
Before addressing paragraphs 2, 5, 6, 8, and 10 of the husband’s points claim, it is as well to record that s13K(2)(a), in its use of the word “fraud”, may be thought to attract the application of authorities to the effect that “fraud unravels everything”, as Lord Justice Denning held in Lazarus Estates Ltd v Beasley.[2] It has been held that fraud takes many forms and is “infinite in variety”,[3] that it may be equitable in nature[4] or it may take a common law form.[5]
[2] [1956] 1 QB 702, 712.
[3] Reddaway v Banham [1896] AC 199, 121.
[4] Nocton v Lord Ashburton [1914] AC 932.
[5] Derry v Peek [1889] AC 337.
It may even exist in the context of public law as was held in SZFDE v Minister for Immigration and Citizenship.[6] Yet when fraud is alleged in a family law context, I take the view that particulars of the fraud alleged must be given in considerable detail.[7]
[6] (2007) 232 CLR 189.
[7] Kan v Aamer (2020) 63 Fam LR 198 and Goodridge v Beadle (2017) 57 Fam LR 425.
It then became necessary to address each paragraph of the husband’s points of claim, aside from paragraph 1.
PARAGRAPH 2
To paraphrase paragraph 2, without giving details of the means deployed (or by whom) the husband asserted that the arbitral award was obtained by means of the non-disclosure of financial information. He did not say what was the financial information that was allegedly not disclosed. Nor did he identify the transactions he said were suspicious nor why those transactions were said to have been suspicious. Aside from the curious use of language, the husband similarly did not identify what was “very big material relevant to determination” (sic).
As has already been recorded, in her response the wife focused on the absence of particulars in relation to the alleged non-disclosure and the allegedly suspicious transaction.
The husband’s 1 June 2022 affidavit did not advance the matter, even though part E of that affidavit revealed that a named solicitor settled the affidavit. In the husband’s 1 June 2022 affidavit he deposed to the following, which I set out verbatim with errors in the original –
(a)that the applicant do believe that the previous lawyer did not disclose/provide all the relevant information provided to him particularly the bank accounts and the nature of other assets;
(b)that the applicant believes that the consent for arbitration award was not accorded with full disclosures and resultantly the arbitration award was not based on fairness and accurate information;
(c)that the applicant do believe that the arbitration award lacks the very significant and relevant aspects of the financial transactions of the case;
(d)that the applicant do believe that the distribution of assets should have been dealt with under the family law as requested in the ancillary application;
(e)that the applicant is in possession of all the relevant documents in lieu of all the property settlement and other ancillary transactions that are very relevant and needs the attention of the family court to initiate the de novo proceedings for fair treatment;
(f)that the applicant believes that there are sufficient grounds to substantiate that the arbitration award may be set aside; and
(g)that the applicant do affirm that all the relevant documents will be provided to the court in the subsequent affidavit that substantiates the facts as currently organising in a understandable manner.
The wife did not respond specifically to the terms of the husband’s contentions in paragraphs 4, 6, 11, 12, 13, 15 and 16 of his affidavit made 1 June 2022.
The consequences of non-disclosure have been essayed by me on several occasions most recently in Paviello & Paviello.[8] It is utile to record the obligations on parties in relation to disclosure in litigation (arbitral or curial) under the Family Law Act. There, I held follows –
[8] [2022] FedCFamC1F 592
7At its core, ground 1 was concerned with the consequences of the arbitrator’s conclusion about material non-disclosure. The review applicant argued that material non-disclosure “should have been as to the ultimate just and equitable adjustment pursuant to s 79(2) of the Act”. The review applicant contended that rather than doing that, the arbitrator considered that non-disclosure enlivened s 75(2)(o) of the Act. The wife argued that authorities such as Black v Kellner,[9] In the Marriage of Briese,[10] Oriolo v Oriolo,[11] In the Marriage of Weir[12] and others contain stipulations about the correct approach to be adopted when one party has been derelict in his or her compliance with the duty of disclosure. In Bacall & Zagar[13] I surveyed the learning in those authorities between the years 1985 and 2020. It is useful to record some of the conclusions set out in that decision –
[9] (1992) 15 Fam LR 343.
[10] (1985) 10 Fam LR 642.
[11] (1985) 10 Fam LR 665.
[12] (1992) 16 Fam LR 154.
[13] [2020] FamCA 350.
(a)rule 13.04 of the Family Law Rules, in operation in the lead up to the commencement of the arbitration in this case, imposed a duty of disclosure;
(b) that duty can be traced back to 19th century equitable principles;[14]
[14] Flight v Robinson (1844) 50 ER 9.
(c)the duty is owed to the court as well as to the parties to the proceeding;[15]
[15] Waterman v Waterman [2017] FamCAFC 23.
(d)full and frank disclosure of all material facts is a fundamental requirement in financial matters;[16]
[16] Black v Kellner (1992) 15 Fam LR 343, In the Marriage of Giunti (1986) 11 Fam LR 160 and In the Marriage of Mezzacappa (1987) 11 Fam LR 957.
(e)a party to a financial proceeding has a duty to make full disclosure of his or her financial affairs;[17]
[17] In the Marriage of Weir (1992) 16 Fam LR 154.
(f) the duty to disclosure is absolute;[18]
[18] Kannisv Kannis (2002) 30 Fam LR 83.
(g)the duty is crucial to the functioning of courts administering the Family Law Act;[19]
[19] In the Marriage of Morrison (1994) 18 Fam LR 519.
(h)full and frank disclosure of financial matters between the parties is basic to the process of the court and is one of the elements of the Family Law Act;[20]
(i)parties are expected to cooperate in the conduct of the proceeding in order to bring about an early and prompt conclusion with a minimum of expense; [21]
(j)the duty involves full and frank disclosure in a timely manner;[22]
(k)if a party breaches the duty of full and frank disclosure as outlined above, the uppermost limit of what can be ordered to be transferred to one party in a s 79 application is the whole of the ascertained property of the parties;[23]
(l)it is not open to a party who has failed to fulfil the duty of full and frank disclosure to rely on that failure so as to prevent the making of orders against the party in default;[24]
(m)any failure to disclose relevant financial information may lead a court to draw inferences against the person who failed to disclose the relevant financial information;[25]
(n)where there is clear evidence of non-disclosure the court should not be unduly cautious about making findings in favour of the innocent party;[26]
(o)once there is sufficient evidence to support a finding that a party has not made full and frank disclosure, the court has jurisdiction to make orders in relation to unidentified and undisclosed property;[27]
(p)the duty to disclose is absolute and it is beside the point whether the non-disclosure was wilful, accidental, the result of misfeasance or nonfeasance;[28] and
(q)in the case of deliberate non-disclosure, the court is entitled to draw inferences against the non-disclosing party.[29]
[20] In the Marriage of Suiker (1993) 17 Fam LR 236.
[21] In the Marriage of Marinko (1983) 8 Fam LR 849.
[22] In the Marriage of Briese (1985) 10 Fam LR 642, Waterman & Waterman [2017] FamCAFC 23, In the Marriage of Morrison (1994) 18 Fam LR 519 and In the Marriage of Suiker (1993) 17 Fam LR 236.
[23] Monte & Monte [1986] FamCA 1.
[24] In the Marriage of Giunti (1986) 11 Fam LR 160, Black v Kellner (1992) 15 Fam LR 343 and Oriolo v Oriolo (1985) 10 Fam LR 665.
[25] In the Marriage of Stein (1986) 11 Fam LR 353.
[26] In the Marriage of Weir (1992) 16 Fam LR 154 and Monte & Monte [1986] FamCA 1.
[27] Ibid.
[28] Chang v Su (2002) 29 Fam LR 406, In the Marriage of Weir (1992) 16 Fam LR 154 and Kannis v Kannis (2002) 30 Fam LR 83.
[29] In the Marriage of Stein (1986) 11 Fam LR 353, In the Marriage of Mezzacappa (1987) 11 Fam LR 957, In the Marriage of Giunti (1986) 11 Fam LR 160, In the Marriage of Morrison (1994) 18 Fam LR 519 and Barker v Barker (2007) 36 Fam LR 650.
In this case the husband asserted, without explaining, that in his view the “arbitration award was obtained by means of the non-disclosure of financial information”. In the arbitrator’s reasons the arbitrator said nothing about deficiencies of disclosure nor was any contention advanced by the husband to the effect that during the arbitration, disclosure as given by the wife was deficient. The arbitrator recorded that the marriage was of 27 years duration and that in the circumstances a global approach was appropriately adopted in relation to the property pool. The arbitrator recorded how he was confronted with asserted values of some items that were not substantiated and the arbitrator addressed the legal issues associated with add-backs.
Under the rubric of unexplained transactions in item 26 of the balance sheet, the arbitrator resisted adding back amounts the husband said aggregated $121,885.35. However, the arbitrator did not state that any deficiency in disclosure was relevant to the arbitrator’s approach to item 26. In all other respects, the arbitrator’s award was silent on the issue of disclosure deficiencies.
The submissions advanced by the husband in support of his s 13K application contained a collection of assertions in respect of which no evidence supported those submissions. It is important to set out those assertions verbatim because legal representatives acting for parties in this court are under an obligation not to put forward wholly unsupportable submissions. The submissions I regarded as being questionable have been set out verbatim as follows with errors in the original –
(a)the applicant reiterates that the arbitration award sought was not based on the true facts and there have been a series of miscommunication and misreporting on the part of the previous legal representative;
(b)the applicant disadvantaged on the premise of illiteracy, limited language communication skills and misrepresentation of the previous legal representative;
(c)that the applicant does believe that there are multiple bank transactions not disclosed and it requires court attention for the sake of justice and there are multiple transactions in the bank accounts need to be addressed and requires further forensic analysis;
(d)that the applicant do believe that the distribution of assets should have been dealt with under the family law as requested in the ancillary application;
(e)that the applicant is in possession of all the relevant documents in lieu of all the property settlement and other ancillary transactions that are very relevant and needs the attention of the family court to initiate the de novo proceedings for fair treatment and distribution of the assets;
(f)that the applicant is in very good and stable mental position to let the court of law apprise about the whole episode of erroneous arbitration award obtained;
(g)the applicant was not fully aware of all processes involved in the arbitration proceedings and even did not comprehend the implications that was not based on the facts;
(h)the applicant was also not apprised of all the timelines and implications through the whole process and resultantly disadvantaged;
(i)that the applicant is in possession of all the relevant documents in lieu of all the property settlement and other ancillary transactions that are very relevant and needs the attention of the family court to initiate the de novo proceedings for fair treatment;
(j)there are sufficient grounds to substantiate that the arbitration award may be set aside;
(k)that the applicant believes that the respondent did illicit and suspicious transactions from the bank accounts without my consent for their personal pursuits that requires court attention;
(l)that the application do believe that the arbitration award lacks the very significant and relevant aspects of the assets and the financial transactions of the case;
(m)that the application believes that the financial information has not been fully disclosed and the previous lawyer didn't follow the instructions in letter and spirit; and
(n)that the applicant believes that based on all the submissions, the applicant was disadvantaged, and the arbitration award was obtained based on incomplete disclosures and mishandling of previous lawyer.
The husband’s written submissions were made by the husband’s solicitors. Those solicitors were under an obligation to ensure that the propositions being advanced were fairly open on the evidence and were not fanciful. Most of the husband’s assertions in his written submissions had no foundation in fact or law and should not have been made. Specifically for paragraph 2 of the husband’s points of claim, I am not persuaded that the arbitral award was obtained in the manner asserted, namely, by means of non-disclosure.
It must not be overlooked that the husband was represented at the arbitration, first by his solicitor then by counsel.
In his affidavit made 19 October 2022, the husband asserted that certain bank accounts had not been disclosed, details of which were set out in a report dated 2 April 2020 prepared by Ms J of K Accountants. The arbitrator’s award recorded in paragraph 10 that the husband did not rely on the K Accountants report. The arbitrator’s reasons recorded why that report did not go into evidence, namely, because the writer could not be made available for cross-examination. In those circumstances, it ill behoved the husband to later assert that the arbitrator somehow failed to address disclosure issues.
There was no merit in the complaints asserted in paragraph 2 of the husband’s points of claim.
PARAGRAPH 3
In this paragraph the husband asserted that the arbitrator ignored the forensic report of banking transactions. He asserted that by doing that, the arbitrator produced a “very unjust outcome” (his words). The husband did not say so in as many words but I am proceeding on the basis that the forensic report with which paragraph 3 of the points of claim is concerned is the K Accountants report, already canvassed in relation to paragraph 2 of the husband’s points of claim. That report was not “ignored” as the husband asserted. Instead, and in conformity with conventional orthodoxy in adversarial litigation (of which this arbitration was an illustration) the arbitrator recorded (but did not state he ruled on the issue) that in the absence of the report writer subjecting herself to cross-examination, the report was not received into evidence. That approach was entirely proper, as I surveyed in Goodridge v Beadle.[30] In my judgment, the arbitrator did not ignore the forensic report of banking transactions. Instead, he treated it in the manner he should have by not receiving it in evidence in circumstances where the maker of the report was not available for cross-examination.
[30] (2017) 57 Fam LR 425.
So far as the husband’s submissions in paragraph 5 of his 15 August 2022 submissions were concerned, I reject the contention that the court’s attention is required “for the sake of justice” (his solicitor’s words) so that multiple transactions are given forensic analysis. Several things must be said of that submissions, namely –
(a)the arbitrator’s award expressly stated that the arbitrator received in evidence a collection of bank statements which the arbitrator considered as part of his evaluative process in reaching a just and equitable outcome on the s 79 application;
(b)the husband should have recognised that in the absence of agreement, the forensic report of K Accountants was unlikely to have been admitted into evidence in circumstances where the author of the report was unavailable for cross-examination as to do otherwise was to present an unbalanced version of the evidence covered by the forensic report; and
(c)the husband had at all times the facility prescribed by s 13F of the Family Law Act enabling the husband to seek directions from the court on the matter, of which facility the husband did not avail himself.
Paragraph 3 is devoid of merit.
PARAGRAPH 4
In this paragraph of his points of claim the husband asserted that the arbitral award was agreed without the full consent of the husband.
The husband misunderstood the manner in which the award was produced.
The making of an order under s 13E needed agreement.
The entry into the arbitration agreement required consent, as was held in Entezam v Devi.[31]
[31] (2021) 62 Fam LR 637
But the making of the award was governed by Regulation 67P of the Family Law Regulations 1984. The arbitrator was required by statute to make the award. The arbitrator was not required to circulate a draft of the award before it was made nor was the arbitrator required to obtain the parties’ consent before publishing the award.
The assertion in paragraph 4 of the husband’s points of claim to the effect the award was agreed without the husband’s consent is premised on an erroneous construction of Regulation 67P. No consent was required. Even if one party protested about the making of the award, any such protest may have been relevant at the stage of applying to register the award. However, in this case the award was registered under s 13H by consent, as is the usual practice.
Paragraph 4 of the husband’s points of claim was devoid of merit.
PARAGRAPH 5
In that paragraph the husband asserted that in his belief the award was based on a fraudulent act of his previous lawyers. His points of claim did not state on what matters of fact he relied in order to make good the fraud assertion. Nor did any information in his 1 June 2022 affidavit illuminate the position. A similar position applied in respect of his 28 July 2022 affidavit as well as his 19 October 2022 affidavit. His two sets of submissions did not improve the position. The allegations in respect of paragraph 5 were devoid of merit.
PARAGRAPH 6
Relevantly to s 13K(2)(a) of the Family Law Act, pursuant to this paragraph the husband asserted that “there have been fraudulent bank transactions by the respondent.” He made no attempt to –
(a)identify the transactions he said were fraudulent;
(b)identify in what respect they were allegedly fraudulent;
(c)explain why he did not raise allegations of fraud before the arbitrator; or
(d)explain why he raised this issue now, having apparently not previously raised it.
No detail of any fraud, as alleged, was given in the husband’s several affidavits.
I was not persuaded that the allegations in paragraph 6 had merit.
PARAGRAPH 7
The husband’s belief that his legal representatives did not follow instructions was an unqualified and unparticularised assertion. Depending on the nature of the acts on which he may have relied in support of that contention, professional negligence issues may have arisen. However, beyond asserting that the husband’s solicitors did not follow instructions, no details emerged.
The claim in this paragraph was devoid of merit in respect of s 13K(2)(a).
PARAGRAPH 8
The analysis given in relation to paragraph 2 applies with equal force and effect in respect of this paragraph. Paragraph 8 was devoid of merit.
PARAGRAPH 9
No allegation of fraud was made in paragraph 9 of the husband’s points of claim so as to enliven the courts’ jurisdiction under s 13K(2)(a) of the Family Law Act.
PARAGRAPH 10
Reference in paragraph 10 of the husband’s points of claim to phrases or clauses such as the wife having engaged in “illicit and suspicious and unauthorised transactions” presented a superficially relevant facade pursuant to which s 13K(2)(a) of the Family Law Act may have been engaged. Support for that may also have been raised by the contention that those transactions were without the husband’s consent but rather they were for the wife’s “personal pursuits and ulterior motives” (as was the wording of paragraph 10).
No details were given by the husband of the so-called illicit, suspicious and unauthorised transactions. No details were given of how and in what respect those transactions advanced the wife’s personal pursuits and her ulterior motives. For that matter, the husband did not say what were the wife’s personal pursuits or her ulterior motives.
In my view paragraph 10 was devoid of merit.
PARAGRAPH 11
No assertion referable to s 13K(2)(a) was made by the contentions in paragraph 11 of the husband’s points of claim. Instead, in that paragraph the husband advanced a generic and unparticularised assertion that the arbitrator’s award was unjust and unfair. In my view, paragraph 11 was devoid of merit.
PARAGRAPH 12
In this paragraph the husband made a statement that went nowhere. Relevantly paraphrased, he asserted that he was in such good mental form as to appraise the court (me, as judge-in-charge of the National Arbitration List) about the “the whole episode of erroneous arbitration award obtained” (sic) (his words). Aside from the fact that paragraph 12 made no grammatical sense, whatever may have been his intendment by that paragraph, it raised no issue by which s 13K(2)(a) was enlivened.
PARAGRAPH 13
This paragraph was meaningless in the context of the husband’s s 13K(2)(a) application.
All paragraphs of the husband’s points of claim failed. Relief under s 13K(2)(a) of the Family Law Act is refused. His application dated 23 March 2022 is dismissed.
THE WIFE’S APPLICATION
The wife brought an enforcement application dated 8 June 2022. Annexure 1 to that application was in the following terms –
Enforcement Orders sought
1.That the Judicial Registrar pursuant to Section 106A of the Family Law Act 1975 execute documents, including but not limited to CBA Discharge /Refinance Authority Form and authorisation forms as required by Property Exchange Australia (PEXA), in the name of "[Mr Rajavade]" to enforce Orders 2.1 and 2.2 of the Arbitral Award dated 23 June 2021.
2.That the Respondent pay the Applicant's costs of and incidental to this Application - Enforcement.
3. Any other Order as the Court deems fit.
Her purpose in that enforcement application, self-evidently, was to give effect to paragraph 2.1 and 2.2 of the arbitral award. Those provisions have been set out above so I shall not repeat them here. Paragraph 10 of the award incorporated the power to make orders under s 106A of the Family Law Act.
The arbitral award was made in late June 2021. The tasks ordered to be done ought to have been completed long ago, even recognising the lapse of time in allowing the husband time to pursue the failed s 13K(2)(a) application.
In support of the wife’s application she relied on her own affidavit made 8 June 2022. Relevantly distilled, the following factual matters arose from that affidavit –
(a)pursuant to the arbitral award, the transfer to her of the Suburb G property should have been effected by not later than 12 September 2021;
(b)on 9 September 2021 her solicitors sent the husband’s solicitors a discharge of mortgage form to be executed by the husband in advance of settlement;
(c)the husband’s solicitors having failed to return the executed discharge of mortgage, on 30 September 2021 her solicitors then acting for her requested the husband’s solicitors to provide an executed discharge of mortgage in readiness of settlement which the husband’s solicitors did not do;
(d)on 30 September 2021 the husband’s current solicitors informed the wife’s solicitors that they were retained but they did not disclose the husband’s position in relation to the executed discharge of mortgage so the wife’s solicitor contacted the husband’s solicitors on 11 October 2021 to which no response was given;
(e)on 15 November 2021 the wife’s solicitors applied to the court for relief and informed the husband’s solicitors of that by letter sent on 16 November 2021; and
(f)further correspondence was sent between solicitors on 24 February 2022 to which no response was provided on behalf of the husband.
The wife’s solicitor, Arjun Sirohi, made an affidavit affirmed 5 July 2022. Relevantly paraphrased, Mr Sirohi deposed to the following –
(a)on 10 June 2022 he filed the wife’s enforcement application;
(b)he arranged for the enforcement application to be served on the husband on 16 June 2022;
(c)the process servers he appointed informed him on 18 June 2022 that the enforcement application documentation had not been served; and
(d)he ascertained on 5 July 2022 that the husband had viewed the relevant court portal that included the wife’s enforcement application and that the husband was to be taken to be aware of the wife’s application.
In her outline of case dated 28 September 2022, the wife contended that the husband had failed to articulate his assertions of fraud, citing my decision in Bakalov & Bakalov.[32] She argued that no evidence of fraud existed. She submitted that the arbitrator correctly found that net assets of the parties were justly and equitably divided between the parties as to 54% to the husband and 46% to the wife.
[32] [2021] FedCFamC1F 161
In section E of her outline of case the wife submitted that the husband’s application dated 26 April 2022 should be dismissed. I have made an order already dismissing the husband’s application under s 13K(2)(a).
In my view, the wife is entitled to the orders she seeks as are recorded in paragraphs 2 and 3 of her case outline.
Costs are to be determined after submissions and any further evidence.
In those circumstances, I order –
(a)any application for costs is to be brought by application in a proceeding under the Federal Circuit and Family Court of Australia (Family Law) Rules 2021 by noon on 17 February 2023;
(b)any affidavit in support of costs must be filed and served by noon on 24 February 2023;
(c)any affidavit in opposition to any affidavit filed in support of costs must be filed and served by noon on 3 March 2023;
(d)any submissions in relation to costs must be filed and served by noon on 10 March 2023; and
(e)the question of costs will be decided on the papers subsequent to 10 March 2023.
I certify that the preceding sixty-seven (67) numbered paragraphs are a true copy of the Reasons for Judgment of the Honourable Justice Wilson. Associate:
Dated: 3 February 2023
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