FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA
(DIVISION 1)
Safi & Rafiq (No 3) [2024] FedCFamC1F 45
File number: SYC 436 of 2022 Judgment of: CAMPTON J Date of judgment: 6 February 2024 Catchwords: FAMILY LAW – PRACTICE AND PROCEDURE – Where the husband makes an oral application for leave to rely on a Further Amended Application in an Arbitration (“Amended Application”) – Where the husband has obtained the indulgence of leave on prior occasions to amend his relief sought – Where the husband has been previously placed on notice that his relief as sought is not competent – Where the proposed Amended Application is substantially different from his current relief sought as listed for trial – Where the proposed Amended Application also does not pose a competent question of law and does not seek competent relief – Where an adjournment would be required if leave were to be granted in order to afford procedural fairness to the wife – Where an adjournment is not in the interests of justice to the wife or to other litigants and stakeholders in the litigation process – Application for leave refused. Legislation: Family Law Act1975 (Cth) ss 13J and 13K Cases cited: Aon Risk Services Australia Ltd v Australian National University (2009) 239 CLR 175; [2009] HCA 27
R v Watson; Ex parte Armstrong (1976) 136 CLR 248; [1976] HCA 39
Safi & Rafiq (No 2) [2023] FedCFamC1F 917
Division: Division 1 First Instance Number of paragraphs: 13 Date of hearing: 6 February 2024 Place: Sydney Counsel for the Applicant: Ms Hawkins Solicitor for the Applicant: Double Eight Legal Counsel for the Respondent: Ms Ingenito Solicitor for the Respondent: Benchmark Conveyancing Lawyers 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:
6 FEBRUARY 2024
THE COURT ORDERS THAT:
1.The husband's oral application for leave to rely on his Further Amended Application in an Arbitration filed 1 February 2024 is refused.
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 the pseudonym Safi & Rafiq has been approved pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth).
EX TEMPORE REASONS FOR JUDGMENT
CAMPTON J:
The husband by way of an oral application made at the hearing today seeks…
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CaseChat Overview and Summary
The court considered the husband's history of amending his application and the notice that had been given to him regarding the competency of his relief as sought. The proposed Amended Application was substantially different from the current relief sought as listed for trial and did not pose a competent question of law or seek competent relief. The court also considered whether an adjournment would be required if leave were to be granted in order to afford procedural fairness to the wife and whether an adjournment was in the interests of justice to the wife or to other litigants and stakeholders in the litigation process. The court found that the husband's application for leave to rely on his Further Amended Application in an Arbitration was not in the interests of justice and refused the application.
The court emphasised the importance of identifying with precision the question or questions of law that the husband sought to agitate in his application for review. The court also highlighted the difference between a question of law and a question of fact, noting that a contended error as to a finding of fact may not constitute a question of law, even if the reasoning whereby the arbitrator reached his conclusion of fact was demonstrably unsound. The court found that the husband's proposed Amended Application did not adequately formulate the questions of law he sought to agitate and that it was necessary for him to recast those questions. The court also found that an adjournment would be required if leave were to be granted in order to afford procedural fairness to the wife, but that an adjournment was not in the interests of justice to the wife or to other litigants and stakeholders in the litigation process.
The Federal Circuit and Family Court of Australia ordered that the husband's oral application for leave to rely on his Further Amended Application in an Arbitration filed 1 February 2024 be refused. The court emphasised the importance of identifying with precision the question or questions of law that the husband sought to agitate in his application for review and found that the proposed Amended Application did not adequately formulate the questions of law he sought to agitate. The court also found that an adjournment would be required if leave were to be granted in order to afford procedural fairness to the wife, but that an adjournment was not in the interests of justice to the wife or to other litigants and stakeholders in the litigation process.
Orders
Orders of the court
THE COURT ORDERS THAT:
1. The husband's oral application for leave to rely on his Further Amended Application in an Arbitration filed 1 February 2024 is refused.
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 an adjunct to the husband's application for review of the Award, he sought an application for a stay of enforcement of the Award as registered, pending determination of the review. Reasons for judgment were delivered on the application for stay on 24 October 2023 (see Safi & Rafiq (No 2) [2023] FedCFamC1F 917). Those reasons in part also determined an application for leave made by the husband to amend his Application in an Arbitration for review. Those reasons recorded:THE APPLICATION FOR LEAVE TO AMEND THE APPLICATION IN AN ARBITRATION11 The husband concedes that it is necessary for him to identify with precision in his application in an arbitration the question or questions of law which, if decided in his favour on review, would result in an order setting aside the award and granting other relief, whether his relief be pursuant to s 13J or s 13K of the Act.12 He concedes that his application for review as presently filed does not adequately formulate the questions of law he seeks to agitate, and that it is necessary for him to recast those questions.13 It is trite to observe that the jurisdiction conferred by s 13J of the Act does not permit the Court to substitute its judgment or discretion for that of the arbitrator unless an error in relation to a question of law is first established.14 It is important also to focus upon the difference between a question of law and a question of fact, noting that a contended error as to a finding of fact may not constitute a question of law, even if the reasoning whereby the arbitrator reached his conclusion of fact was demonstrably unsound (see Westport Insurance Corporation v Gordian Runoff Ltd (2011) 244 CLR 239 at [27]).15 For the purposes of the hearing of the application for review as prosecuted by the husband, in circumstances where the wife accepts that the application could not be heard today, save as to costs there is little prejudice to her in a short adjournment permitting the husband to recast the question of law he poses on review.16 Accordingly, orders will be made permitting the husband to amend for what will now be the third time his application in an arbitration seeking review. Hence, on 24 October 2023 the following orders were made: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;