FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA
(DIVISION 1)
Safi & Rafiq (No 2) [2023] FedCFamC1F 917
File number: SYC 436 of 2022 Judgment of: CAMPTON J Date of judgment: 24 October 2023 Catchwords: FAMILY LAW – STAY APPLICATION – Application to stay enforcement of a registered arbitral award adjusting property between the parties pending application for s 13J review –Where the application in an arbitration for review does not currently pose any question of law – Where the prospects of success of the review are hence limited – Orders permitting amendment of the Application in an Arbitration seeking review for the third time – Orders on condition as to the stay of some parts of the determination by way of the arbitral award subject to review. Legislation: Family Law Act 1975 (Cth) Pt VIII, ss 13E, 13J, 13K
Federal Circuit and Family Court of Australia (Family Law) Rules 2021 (Cth)
Cases cited: Jennings Construction Limited v Burgundy Royale Investments Pty Limited (1986) 161 CLR 681; [1986] HCA 84
McLaughlin & McLaughlin (No 2) [2023] FedCFamC1F 516
Westport Insurance Corporation v Gordian Runoff Ltd (2011) 244 CLR 239; [2011] HCA 37
Division: Division 1 First Instance Number of paragraphs: 29 Date of hearing: 24 October 2023 Place: Sydney Counsel for the Applicant: Mr Heazlewood Solicitor for the Applicant: Unified Lawyers Solicitor for the Respondent: Double Eight Legal ORDERS
SYC 436 of 2022 FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 1)
BETWEEN: MR RAFIQ
Applicant
AND: MS SAFI
Respondent
ORDER MADE BY:
CAMPTON J
DATE OF ORDER:
24 OCTOBER 2023
THE COURT ORDERS THAT:
1.Within 14 days from the date of these Orders, the husband file an Amended Application in an Arbitration identifying with precision the question or questions of law which, if decided in his favour on review, would result in an order setting aside or varying the arbitral award of Mr C dated 21 June 2023, as registered on 22 August 2023, pursuant to s 13J or s 13K of the Family Law Act 1975 (Cth), together with such further evidence upon which he would seek to rely for the purposes of the application for review
2.That within 14 days thereafter, the wife file and serve such Amended Response to an Application in an Arbitration as relied upon by her, together with such further affidavit evidence (if any) she would purport to rely upon for the purposes of the hearing of the husband’s application for review.
3.Except as provided for by these Orders, the parties will not be permitted to file any other affidavit evidence for the purposes of the application for review and may not reply on any past affidavits at review without leave of the court save as except those pursuant to these Orders or those filed by the parties subsequent to 21 June 2023, being the date of the arbitral award;
4.The matter is listed for allocation of a hearing date and procedural directions as to the Application for Review via Microsoft Teams…
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- AGLC
- Safi & Rafiq (No 2) [2023] FedCFamC1F 917
- Case
- [2023] FedCFamC1F 917
- Decision Date
CaseChat Overview and Summary
The court noted that Mr Rafiq's prospects of success in the review were limited, as the application did not currently pose any question of law. However, the court considered the balance of convenience between the parties. Mr Rafiq agreed to execute a transfer document to facilitate Ms Safi becoming the sole registered proprietor of the unencumbered Suburb E property and to do all things to enable Ms Safi to achieve the benefit of the proceeds of sale of the Suburb M property held on trust for the parties. The court found that these parts of the award would not prejudice Mr Rafiq, even if he was successful on review. The court also found that Ms Safi would suffer no prejudice if an order was made that she not encumber the transferred unencumbered Suburb E property pending determination of the review. The court granted the stay on the conditions that Mr Rafiq filed an amended application in arbitration and that Ms Safi's costs of the application for a stay of the arbitral award be reserved to the determination of Mr Rafiq's application for review of that award.
The court made several orders, including that Mr Rafiq file an amended application in arbitration within 14 days from the date of the orders, that Ms Safi file and serve an amended response to an application in arbitration within 14 days thereafter, and that the parties not be permitted to file any other affidavit evidence for the purposes of the application for review without leave of the court. The court listed the matter for allocation of a hearing date and procedural directions as to the application for review via Microsoft Teams at 2.15pm on 11 December 2023. The court also stayed the enforcement of paragraphs 4 and 10 of the determinations as contained in the arbitral award dated 21 June 2023 on the conditions that Mr Rafiq comply with the arbitral award and that Ms Safi not transfer, mortgage, encumber, assign, or adversely deal with her interest in the Suburb E property pending further order.
Orders
Orders of the court
SYC 436 of 2022
FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 1)
BETWEEN:
MR RAFIQ
Applicant
AND:
MS SAFI
Respondent
ORDER MADE BY:
CAMPTON J
DATE OF ORDER:
24 OCTOBER 2023
THE COURT ORDERS THAT:
1. Within 14 days from the date of these Orders, the husband file an Amended Application in an Arbitration identifying with precision the question or questions of law which, if decided in his favour on review, would result in an order setting aside or varying the arbitral award of Mr C dated 21 June 2023, as registered on 22 August 2023, pursuant to s 13J or s 13K of the Family Law Act 1975 (Cth), together with such further evidence upon which he would seek to rely for the purposes of the application for review
2. That within 14 days thereafter, the wife file and serve such Amended Response to an Application in an Arbitration as relied upon by her, together with such further affidavit evidence (if any) she would purport to rely upon for the purposes of the hearing of the husband’s application for review.
3. Except as provided for by these Orders, the parties will not be permitted to file any other affidavit evidence for the purposes of the application for review and may not reply on any past affidavits at review without leave of the court save as except those pursuant to these Orders or those filed by the parties subsequent to 21 June 2023, being the date of the arbitral award;
4. The matter is listed for allocation of a hearing date and procedural directions as to the Application for Review via Microsoft Teams at 2.15pm on 11 December 2023;
5. Pending further order and determination of the Application for Review, the enforcement of paragraphs 4 and 10 of the determinations as contained in the arbitral award dated 21 June 2023 and registered in this Court on 22 August 2023, be stayed on the following conditions:
(a) That within seven days of the date of these Orders, the husband do all such things as are necessary to comply with and to implement paragraphs 3 and 5 of the registered arbitral award;
(b) The husband do all such things as are necessary to expeditiously prosecute his application for review of the arbitral award as amended;
(c) That subsequent to the husband’s compliance with the arbitral award so as to complete the transfer of his interest in the D Street, Suburb E NSW property (“the Suburb E property”) to the wife pursuant to the arbitral award, pending further order the wife is restrained from transferring, mortgaging, encumbering, assigning, or adversely dealing with her interest in the said Suburb E property, of the husband’s application for review of the arbitral award as amended;
6. That the wife’s costs of the application for a stay of the arbitral award be reserved to the determination of the husband’s application for review of that award.
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.
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
As identified during the hearing today, it is necessary to consider the prospects of the review and where the balance of convenience lies between the parties. Consideration The husband accepts that he bears the onus to establish that the circumstances warrant a departure from the general rule that the award is presumed to be correct and enforceable upon its registration. He is confronted with a difficulty in that the assessment of his prospects of success on review by way of a question of law, pursuant to s 13J of the Act, are at best remote on the material that he has filed. Another view may be that his application does not cast a question of law on review and hence must fail, albeit that he seeks, for a third time, to recast the questions of law to be posed. In this matter the husband concedes, and the wife agrees, that it is appropriate for any stay that he forthwith:(a)execute a transfer document to facilitate the wife becoming the sole registered proprietor of the unencumbered Suburb E property; and(b)do all things to enable the wife to achieve the benefit of the proceeds of sale of the Suburb M property held on trust for the parties in the sum of $333,635.Each by way of implementation of some of the determinations contained within the award. As was self-evident during exchanges today that:(a)The implementation of each of those parts of the award will not prejudice the husband such that he agrees that even irrespective as to the review, the wife ought to achieve the Suburb E real property; (b)If he is successful on review, so as for he to achieve receipt of $330,635 from the Suburb M property rather than the wife, that sum can be accessed from the wife’s unencumbered interest in the Suburb E property, the value of that property being $700,000; provided that(c)An order is made that the wife not encumber the transferred unencumbered Suburb E property pending determination of the review. The wife confirmed she will suffer no prejudice if such order is made. The wife therefore achieves some of the fruits of the award. This achieves benefits for the wife that she ought to have received within two months of the date of the award, being on 21 August 2023. The wife properly concedes that in the event the husband was required to pay $128,498.98 to her, and it was expended, that may occasion prejudice to the husband should his review be successful. It would certainly occasion prejudice to the husband if the United Kingdom property was sold, upon the husband’s default in paying that primary sum to the wife. The wife, to her credit, agrees to a stay of the obligations of the husband to pay the sum of $128,498.98 and of the default process requiring him to sell the United Kingdom property pending determination of the review. Her position is somewhat protected as she is receiving the solace of interest on the outstanding sum payable from a date two months after the date of the award should the husband be unsuccessful on the review. In all of the circumstances and on balance, it is appropriate to grant the husband’s stay for some parts of the determination on review, on the conditions identified.