Renahan and Svitah - [2020] FamCAFC 141

FAMILY COURT OF AUSTRALIA

RENAHAN & SVITAH

[2020] FamCAFC 141

FAMILY LAW – APPEAL – PROPERTY – Challenge to the registration of an arbitration award by consent – Application for summary dismissal pursuant to s 96AA of the Family Law Act 1975 (Cth) made by the respondent – Where the grounds of appeal do not identify any error on the part of the primary judge – No prospects of success in any of the grounds of appeal – Appeal dismissed – Appellant to pay the respondent’s costs of the appeal in a fixed sum.

Family Law Act 1975 (Cth) ss 13E, 90SM, 94AAA(3), 96AA, 117(2A)
Federal Circuit Court Rules 2001 (Cth) r 16.05
Family Law Regulations 1984 (Cth) reg 67Q

Lindon v Commonwealth of Australia (No 2) (1996) 136 ALR 251; [1996] HCA 14
Smits v Roach (2006) 227 CLR 423; [2006] HCA 36

APPELLANT:

Mr Renahan

RESPONDENT:

Ms Svitah

FILE NUMBER:

SYC

5775

2018

APPEAL NUMBER:

EAA

2020

DATE DELIVERED:

5 June 2020

PLACE DELIVERED:

Sydney

PLACE HEARD:

Sydney (via videolink)

JUDGMENT OF:

Aldridge J

HEARING DATE:

28 May 2020

LOWER COURT JURISDICTION:

Federal Circuit Court of Australia

LOWER COURT JUDGMENT DATE:

12 February 2020

REPRESENTATION

COUNSEL FOR THE APPELLANT:

In person

SOLICITOR FOR THE RESPONDENT:

Swaab Attorneys

Orders

The Application in an Appeal filed by the appellant on 7 May 2020 be dismissed.
The appeal be dismissed.
The appellant is to pay the respondent’s costs of the appeal fixed in the sum of $2,300 within 90 days.

Note: The form of the order is subject to the entry of the order in the Court’s records.

IT IS NOTED that publication of this judgment by this Court under the pseudonym Renahan & Svitah has been approved by the Chief Justice pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth).

Note: This copy of the Court’s Reasons for Judgment may be subject to review to remedy minor typographical or grammatical errors (r 17.02A (b) of the Family Law Rules 2004 (Cth)), or to record a variation to the order pursuant to r 17.02 Family Law Rules 2004 (Cth).

THE APPELLATE JURISDICTION OF THE FAMILY COURT OF AUSTRALIA AT
SYDNEY

Appeal Number: EAA 31 of 2020
File Number: SYC 5775 of 2018

Mr Renahan

Appellant

And

Ms Svitah

Respondent

REASONS FOR JUDGMENT

By a Notice of Appeal filed on 10 March 2020, Mr Renahan (“the appellant”) appeals against consent orders made by a judge of the Federal Circuit Court of Australia registering an arbitration award. Ms Svitah (“the respondent”) seeks summary dismissal of the appeal pursuant to s 96AA of the Family Law Act 1975 (Cth) (“the Act”).
This appeal was heard by me as a single judge pursuant to a direction given by the Chief Justice under s 94AAA(3) of the Act.
The parties were engaged in property settlement proceedings pursuant to s 90SM of the Act. On 17 May 2019, orders were made by consent pursuant to s 13E of the Act referring the proceedings to an arbitrator. The arbitration award was made on 1 November 2019. The arbitrator did not accept the appellant’s contentions as to the period of the de facto relationship between the parties and found that it was significantly shorter than the appellant suggested. The parties owned a home at Suburb C (“the Suburb C property”), which was valued at $1,050,000, however there was a registered mortgage held over that property in favour of the respondent’s father in the sum of $1,040,000. The net property available for division between the appellant and the respondent was $123,923 which was divided so that the appellant received 30 per cent and the respondent received 70 per cent.
Pursuant to reg 67Q of the Family Law Regulations 1984 (Cth), the respondent applied to the Court to register the arbitration award. It is common ground that the solicitor then acting for the appellant sent an email objecting to the registration of the award to the Court and the respondent. Although the email was not within the 28 days prescribed by reg 67Q(3), it seems that it was treated as an appropriate objection.
It is also common ground that the matter first came before the primary judge on 28 January 2020. The solicitor for the respondent appeared but there was no appearance for the appellant. It seems that her Honour took the view that there was no longer an objection to the registration of the award and made an order to that effect.
Later that day, the appellant appeared without representation before her Honour and asserted that there was some confusion with the documents that he had been given and expressed his objection to the registration of the arbitration award on the grounds of fraud. Accordingly, the matter was relisted on 30 January 2020 when both parties appeared. On that day, the primary judge set aside the orders made on 28 January 2020 pursuant to r 16.05 of the Federal Circuit Court Rules 2001 (Cth) (presumably, because it was made in the absence of a party) and relisted the matter on 12 February 2020. The effect of this order was, of course, that the respondent’s application for registration of the arbitration award and the appellant’s objection, to the extent that there was one, remained to be considered and determined by the Court.
Both the appellant and the respondent were represented by lawyers at the hearing before the primary judge on 12 February 2020. In addition to the applications in relation to the arbitration award, the respondent had filed an Application in a Case seeking interim orders restraining the appellant from entering, occupying, attending or being within 100 metres of the Suburb C property and granting exclusive occupancy of the Suburb C property to the respondent, which ultimately was to be retained by the respondent. The appellant did not consent to the orders proposed by the respondent. After the issues arising from this application had been identified, the solicitor then acting for the appellant said:
[SOLICITOR THEN ACTING FOR THE APPELLANT]: Your Honour, firstly can I confirm what my friend has said in regards to the non-objection to the registration of the award.
…
[SOLICITOR THEN ACTING FOR THE APPELLANT]: Yes, your Honour. I – I can confirm there is no objection. I’m instructed and I’m reluctant, but my client has instructed me to inform the court that we are appealing, and the basis upon that is partly being his apprehension of bias.
(Transcript 12 February 2020, p.2 line 29–45)
Her Honour then said that she was somewhat confused because that proposed appeal seemed inconsistent with the appellant’s consent to registration of the arbitration award. The solicitor then acting for the appellant responded to her Honour by saying that “[t]here is no objection for the registration of the order” (Transcript 12 February 2020, p.3 line 4).
Later the solicitor then acting for the appellant again confirmed with her Honour that the award should be registered (Transcript 12 February 2020, p.3 lines 44–47). Thus, it was clear that the appellant’s earlier position, when the email objecting to the registration of the arbitration award was sent, was no longer maintained.
The matter was adjourned briefly so that the parties could discuss the interim orders sought by the respondent. The orders sought by the respondent were ultimately made, as well as an order which permitted the appellant to recover his belongings from the Suburb C property. Her Honour then noted that “there is no now [sic] opposition to the arbitration award being registered” (Transcript 12 February 2020, p.5 lines 42–43).
After indicating that her Honour would register the arbitration award and make the usual orders in relation to that, her Honour asked “[t]hat concludes the matter unless there is something else filed. Alright? That’s right with everybody?” (Transcript 12 February 2020, p.6 lines 13–14). No objection was raised.
On appeal, the appellant asserts that in agreeing to the registration of the arbitration award, the solicitor then acting for him was acting contrary to his instructions, which were to oppose its registration. The appellant said that he loudly objected so that everyone in the courtroom was aware of his position. No such interjections appear in the transcript of the proceedings before the primary judge. Neither the primary judge nor the solicitor then appearing for the appellant indicated that they were aware of any such comments and there was no suggestion that the solicitor then acting for the appellant needed to confirm his instructions. Clearly, that would have been the case had the appellant loudly objected. The appellant’s assertions appear unlikely.
Further, the appellant’s position is also inconsistent with there being an adjournment to discuss the interim orders sought by the respondent, yet the solicitor then acting for the appellant persisting with his agreement to the arbitration award being registered.
In any event, whether the appellant objected or not, it is beyond doubt that the transcript reveals that the arbitration award was registered by consent.

The Appeal

The appeal came before me for directions on 30 April 2020. I raised with the solicitor then acting for the appellant what I considered to be significant deficiencies with the grounds of appeal contained in the Notice of Appeal filed on 10 March 2020, which did not assert that the primary judge made an error in registering the arbitration award but rather asserted that the primary judge had made an error in relation to particular findings in the arbitrator’s reasons for award. Of course, the primary judge made no such findings and they were the findings of the arbitrator. Accordingly, the grounds of appeal did not identify error on the part of the primary judge.
The solicitor then acting for the appellant accepted that there were difficulties with the Notice of Appeal. He sought and was granted an adjournment for 14 days to consider the appellant’s position. On 7 May 2020, he filed a Notice of Ceasing to Act.
On 14 May 2020, the appellant appeared in person. Again, I pointed out the difficulties that I had previously expressed to his former solicitor. The appellant then sought and was granted the opportunity to file an Amended Notice of Appeal. Leave was also granted to the respondent to file an Application in an Appeal seeking summary dismissal of the appeal pursuant to s 96AA(1) of the Act which provides:
Appeal may be dismissed if no reasonable prospect of success
If:
(a)an appeal has been instituted in a court under this Part; and
(b)having regard to the grounds of appeal as disclosed in the notice of appeal, it appears to the court that the appeal has no reasonable prospect of success (whether generally or in relation to a particular ground of appeal);
the court may, at any time, order that the proceedings on the appeal be dismissed (either generally or in relation to that ground).
Thus, the matter before me is the consideration of that application filed by the respondent on 28 May 2020 in the light of the Amended Notice of Appeal filed by the appellant on 27 May 2020. I bear in mind that proceedings should not lightly be summarily dismissed (see for example, the discussion by Kirby J in Lindon v Commonwealth of Australia (No 2) (1996) 136 ALR 251).
Grounds 1 and 3 assert that the primary judge made errors in relation to particular findings in the arbitrator’s reasons for award. The primary judge did not make those findings, they were the findings of the arbitrator.
Ground 2 was deleted in the Amended Notice of Appeal.
Ground 4 asserts that the judge made an error of law in concluding that the appellant consented to the registration of the arbitration award.
Clearly, the primary judge made no such error, because as the transcript reveals, her Honour was entirely unaware of anything other than the fact that the appellant consented to the registration. The appellant’s assertion that, notwithstanding what the solicitor then acting for the appellant said, the appellant did not, in fact, consent to the registration of the arbitration award and therefore the order for registration must be set aside, cannot be accepted. In Smits v Roach (2006) 227 CLR 423, Gleeson CJ, Heydon and Crennan JJ said:
46.The adversarial system of litigation operates upon the basis that a party is generally bound by the conduct of counsel, and that counsel has a wide discretion as to the manner in which proceedings are conducted. The width of that discretion is reinforced by the role of the barrister as an officer of the court, by the barrister’s paramount duty to the court, and by the public interest in the efficiency and finality of the judicial processes. This was civil litigation… [i]f it were otherwise, any judgment in a civil case would be at risk of being set aside on the ground that counsel had acted in excess of authority, and the appellate process would be one of endless re-litigation of contested issues.
(Footnote omitted)
The same considerations apply equally to the conduct of proceedings by a solicitor acting as an advocate.
Ground 5 asserts that the primary judge made an error of law by registering an arbitration award “which is a product of fraud”. The appellant said that the fraud was that he paid the sum of $1,721.69 towards the purchase of the Suburb C property. The appellant asserts that the respondent’s father misled the arbitrator because an annexure to the respondent’s father’s affidavit described that payment as having been made by “X” and not the appellant.
An immediate difficulty is that this issue was not taken up at the arbitration because the respondent’s father was not required for cross-examination and his evidence was therefore unchallenged. The appellant does not suggest that this was a matter of which he was unaware at the time of the arbitration. Further, even if there is an error in the respondent’s father’s affidavit, it is far from apparent that any error was fraudulent, or it was that fraud which led the arbitrator to make the particular arbitration award that was made.
More importantly, the appeal is from the registration of the arbitration award by consent. The matter now raised by the appellant does not establish error on the part of the primary judge by accepting to register the award on that basis.
Grounds 6–10, 17, 19 and 20 raise issues with the way that the matter was conducted on 28 and 30 June 2019, but they are not the subject of the appeal and, as I have explained, do not disclose any error on the part of the primary judge. The effect of those orders was to leave the question of the registration of the arbitration award open for determination.
The remaining grounds of appeal (Grounds 11–16 and 18) raise issues which are not relevant, are trivial matters and which, even if accepted, could not possibly demonstrate error on the part of the primary judge in registering the arbitration award, whether it was by consent or not. The fact that both parties consented to registration of the arbitration award eliminates any possibility of success on these grounds of appeal.
It follows that I am very comfortably satisfied that the grounds of appeal do not disclose any matter that has any prospect of success whatsoever and the appeal will be dismissed.

Application in an Appeal filed on 7 May 2020

By an Application in an Appeal filed on 7 May 2020, the appellant sought to issue a subpoena to the Department of Home Affairs. To say the least, the information provided on that subpoena was not relevant to the disposition of this appeal. The Application in an Appeal will be dismissed.

Costs

The respondent sought an order for costs in the sum of $2,300 which is the respondent’s legal costs at scale. I accept that the appellant is not in a strong financial position (s 117(2A)(a) of the Act) and, as there was no opposition to this course by either of the parties, I will make an order that the respondent’s costs be paid within 90 days.

I certify that the preceding thirty-one (31) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Aldridge delivered on 5 June 2020.

Associate:

Date: 5 June 2020