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
Protean (Holdings) Ltd v American Home Assurance Co [1985] VR 187
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.
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Details
AGLC
Rajavade & Rajavade [2023] FedCFamC1F 32
Case
[2023] FedCFamC1F 32
Decision Date
CaseChat Overview and Summary
In Rajavade & Rajavade, the Federal Circuit and Family Court of Australia dealt with two applications in relation to an arbitral award made in the parties' property settlement. The husband sought orders setting aside the arbitral award under s 13K(2)(a) of the Family Law Act 1975 (Cth) while the wife sought orders enforcing the arbitral award under s 106A of the Family Law Act. The husband alleged that the arbitral award was obtained by fraud, that his previous legal representatives did not follow his instructions, and that multiple bank transactions were not disclosed. The wife argued that the husband had not provided particulars of the fraud alleged and that s 13K of the Family Law Act had not been properly engaged. The court held that the husband's application to set aside the arbitral award failed as there was no evidence of fraud or non-disclosure. The court also held that the wife's enforcement application succeeded as the husband had failed to articulate his assertions of fraud and there was no evidence to support his claims. The court ordered that the husband's application to set aside the arbitral award be dismissed and that the wife's enforcement application be granted. The court also made orders for the parties to file and serve affidavits and submissions in relation to costs.