Safi & Rafiq (No 2)

In the Federal Circuit and Family Court of Australia, Mr Rafiq sought a stay on the enforcement of a registered arbitral award, which had adjusted the property settlement between himself and Ms Safi. The application was pending his application for a review of the arbitral award under section 13J of the Family Law Act 1975. The court had to determine whether the application for review posed any question of law and whether the balance of convenience favoured granting the stay. Mr Rafiq bore the onus of establishing that the circumstances warranted a departure from the general rule that the award was presumed to be correct and enforceable upon its registration.

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.