Safi & Rafiq (No 4)

Case [2024] FedCFamC1F 49

FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA

(DIVISION 1)

Safi & Rafiq (No 4) [2024] FedCFamC1F 49

File number: SYC 436 of 2022
Judgment of: CAMPTON J
Date of judgment: 8 February 2024
Catchwords: FAMILY LAW – ARBITRATION – APPLICATION FOR REVIEW – Where the husband seeks to review a registered arbitral award pursuant to s 13J and s 13K of the Family Law Act 1975 (Cth) (“the Act”) – Where the husband was afforded three opportunities to amend his relief, including identifying a question of law for the purposes of the s 13J review – Where the husband was unable to specify the terms of the variation or reversal sought if the review was determined in his favour – Where consideration is given to s 45A of the Act – Amended Application in an Arbitration dismissed.
Legislation:

Evidence Act 1995 (Cth) s 79

Family Law Act 1975 (Cth) ss 13A, 13E, 13H, 13J, 13K, 45A and 79

Federal Circuit and Family Court of Australia Act 2021 (Cth), s 46

Cases cited:

Cawthorn & Cawthorn (1998) FLC 92-805; 23 Fam LR 86

Craft & Craft [2020] FamCA 1027

McLaughlin & McLaughlin [2023] FedCFamC2F 1160

Newett & Newett (No 8) [2023] FedCFamC1A 7

Rohde and Rohde (1984) FLC 91-592; [1984] FamCA 41

Safi & Rafiq (No 2) [2023] FedCFamC1F 917

Safi & Rafiq (No 3) [2024] FedCFamC1F 45

Spencer v Commonwealth (2010) 241 CLR 118; [2010] HCA 28

Division: Division 1 First Instance
Number of paragraphs: 50
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:

MS SAFI

Applicant
AND:

MR RAFIQ

Respondent

ORDER MADE BY:

CAMPTON J

DATE OF ORDER:

8 FEBRUARY 2024

THE COURT ORDERS THAT:

1.The Amended Application in an Arbitration filed 8 November 2023 be dismissed.

2.Order 5 made on 24 October 2023 is discharged.

3.On or before 15 February 2024 the wife file and serve any minute of order as to costs, affidavit in support thereof and written submissions of no more than three pages.

4.In the event the wife complies with Order 3, the husband on or before 22 February 2024 file and serve any minute of order as to costs, affidavit in support thereof and written submissions of not more than three pages.

5.The costs judgment is otherwise reserved to chambers.

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

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AGLC
Safi & Rafiq (No 4) [2024] FedCFamC1F 49
Case
[2024] FedCFamC1F 49
Decision Date

CaseChat Overview and Summary

The husband, born in 1953, and the wife, born in 1967, were married in 2004 and separated in 2020. Their dispute concerns property adjustment orders made by an arbitral award under the Family Law Act 1975 (Cth). The wife filed an initiating application for property adjustment, to which the husband responded, leading to the referral of the matter to arbitration. The arbitral award determined a 7.5 per cent adjustment in favour of the wife, and ordered property transfers and payments. The husband sought to review this award under sections 13J and 13K of the Act, on questions of law and on the basis of impracticality respectively. The court considered the husband's submissions, which argued that certain orders in the award were unenforceable because they required the wife to travel to Country B to sign documents, which she had not done. The court found that the husband's evidence did not establish that the award was impracticable to the requisite degree, and that he had failed to specify what relief he sought if the review was successful. The court concluded that the husband's application for review did not have a reasonable prospect of success and dismissed the application. The court also discharged an earlier order staying certain parts of the arbitral award. The wife's claim for costs was reserved for further submissions.

The court held that the husband's evidence, even at its highest, did not establish that the award was impracticable to the requisite degree. The husband had not taken any steps to enforce the award, and there was no evidence of frustration of the award. The husband also failed to identify why the wife could not or would not travel to Country B, or why the wife's alleged personal liability of $100,000 should be considered. The court found that the husband's case for review did not have a reasonable prospect of success, and that he had failed to specify what relief he sought if the review was successful. The court also considered section 45A of the Act, which requires the court to consider whether an application for review has a reasonable prospect of success. The court concluded that the husband's application for review did not have a reasonable prospect of success, and dismissed the application. The court discharged an earlier order staying certain parts of the arbitral award. The wife's claim for costs was reserved for further submissions.

Orders

Orders of the court

SYC 436 of 2022

FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 1)

BETWEEN:

MS SAFI

Applicant

AND:

MR RAFIQ

Respondent

ORDER MADE BY:

CAMPTON J

DATE OF ORDER:

8 FEBRUARY 2024

THE COURT ORDERS THAT:

1. The Amended Application in an Arbitration filed 8 November 2023 be dismissed.

2. Order 5 made on 24 October 2023 is discharged.

3. On or before 15 February 2024 the wife file and serve any minute of order as to costs, affidavit in support thereof and written submissions of no more than three pages.

4. In the event the wife complies with Order 3, the husband on or before 22 February 2024 file and serve any minute of order as to costs, affidavit in support thereof and written submissions of not more than three pages.

5. The costs judgment is otherwise reserved to chambers.

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

For the reasons that follow, the Amended Application in an Arbitration of the husband is dismissed.BACKGROUND The husband was born in 1953 in City O and is 70 years old. The wife was born in 1967 in Country Q and is 56 years old. The husband and the wife married in 2004 and separated on 2 December 2020. They are not yet divorced. Their child, X who was born in 2006 and is 17 years old, is still at school and lives with the wife in Australia. The husband lives in Country B. On 26 January 2022, the wife filed an Initiating Application in the Federal Circuit and Family Court of Australia (Division 2) seeking orders for property adjustment pursuant to s 79 of the Act. The husband filed a Response to an Initiating Application on 8 March 2022 seeking different orders for property adjustment. On 22 November 2022 a consent order was made pursuant to s 13E of the Act referring the totality of the matter to arbitration and transferring it to the Federal Circuit and Family Court of Australia (Division 1). The Award determined a finding of equality as to contributions and adjusted the contribution finding in favour of the wife by 7.5 per cent, concluding that the property of the parties be adjusted to be 57.5 per cent to the wife and 42.5 per cent to the husband. The Award broadly provides for the husband to transfer to the wife his interest in a property at Suburb E, for the husband to pay to the wife the sum of $128,499, for the wife to pay the outstanding balance on their joint loan, for both parties to do all things necessary to transfer the wife’s interest to the husband in four identified real properties in Country B and for the husband to retain a real property at City P, in the United Kingdom.THE REVIEW Section 13J of the Act provides:(1)A party to a registered award made in section 13E arbitration or relevant property or financial arbitration may apply for review of the award, on questions of law, by:(a) the Federal Circuit and Family Court of Australia (Division 2); or(b) a single judge of the Family Court of a State.Note: There may be Rules of Court providing for when, and how, an application for review of the award can be made (see paragraph 123(1)(sf)).(2)On a review of an award under this section, the judge or Federal Circuit and Family Court of Australia (Division 2) may:(a)determine all questions of law arising in relation to the arbitration; and(b)make such decrees as the judge or Federal Circuit and Family Court of Australia (Division 2) thinks appropriate, including a decree affirming, reversing or varying the award. Section 13K of the Act provides:(1) If an award made in section 13E arbitration or relevant property or financial arbitration, or an agreement made as a result of such arbitration, is registered in:(a)the Federal Circuit and Family Court of Australia (Division 1); or (b) the Federal Circuit and Family Court of Australia (Division 2); or (c) a Family Court of a State;the court in which the award is registered may make a decree affirming, reversing or varying the award or agreement.(2)The court may only make a decree under subsection (1) if the court is satisfied that:(a)the award or agreement was obtained by fraud (including non‑disclosure of a material matter); or (b) the award or agreement is void, voidable or unenforceable; or (c) in the circumstances that have arisen since the award or agreement was made it is impracticable for some or all of it to be carried out; or (d) the arbitration was affected by bias, or there was a lack of procedural fairness in the way in which the arbitration process, as agreed between the parties and the arbitrator, was conducted. NATURE OF THE REVIEW PROCEEDINGS

Evidence

Evidence Before The Court

Full text does not contain this section.

Decision

Reasons for decision

The husband’s evidence, taken at its highest, cannot establish the s 13K(2)(c) ground of impracticality to the requisite degree. At best it speculates difficulty. The husband conceded that he has not made any request of the wife to do a thing or to execute a document relating to the H Property, or the R Company shares. No action has been taken to enforce paragraphs 6.2 or 7 of the Award. No frustration of them has occurred. The husband did not identify evidence as to why the wife cannot, or will not, travel to Country B (if that is required), other than she has not done so to date. Additionally, no evidence was adduced to achieve the discretion to justify intervention on review pursuant to s 13K of the Act.CONCLUSION Consideration has been given to the husband’s case for review of the Award pursuant to both ss 13J and 13K of the Act. It does not have a reasonable prospect of success. This conclusion is coupled with and reinforced by the failure of the husband to identify the relief he would seek should he be successful in reviewing the Award. His application for review of the Award will be dismissed. An order will be made pursuant to s 45A of the Act to dismiss the Amended Application for in an Arbitration filed 8 November 2023. On dismissing the review, Order 5 made 24 October 2023, which stayed paragraphs 4 and 10 of the determinations of the Award, will be discharged. The wife sought an order as to costs if the Amended Application in an Arbitration was unsuccessful. Directions will be made to progress the claim for costs. For all the reasons as set out, I make the orders as set out in the commencement of these reasons.

Ratio Decidendi

Legal Principle Established

There was no affidavit evidence from any of the husband’s brother’s family. The arbitrator was not satisfied that the advance was made. He found that no demand had been for repayment of the advance, and if made, was statute-barred. At its highest, the husband adduced on the subject matter by way of his own self-serving e-mails. The arbitrator identified long standing Full Court authority not to consider, in the exercise of discretion, an unsecured alleged familial liability where the alleged liability is vague, uncertain, or unlikely to be enforced. The finding that the alleged loan was not a liability of the parties was available. The arbitrator similarly excluded consideration of an alleged unsecured personal liability of the wife of $100,000. Even if the husband had appropriately posed a question of law on this subject matter, the conclusion of the arbitrator was open on the evidence.Conclusion pursuant to s 45A consideration of s 13J Review Accepting the husband’s case as its highest, such that the grounds identified in his Amended Application in an Arbitration pose questions of law in substance, he cannot establish that his s 13J review has a reasonable prospect of success.THE S 13K REVIEW As discussed, s 13K(2)(e) involves a temporal aspect. The husband bears the onus to establish on the evidence to the requisite degree both that circumstances have arisen since the award was made such that it is impracticable and in the exercise of discretion the determination made ought to be reversed or varied. For the following reasons, consideration to s 45A of the Act will also be made in assessing the s 13K review grounds taking the evidence the husband has relied upon at its highest. In his Amended Application in an Arbitration, the husband’s “grounds” pursuant to s 13K were:8. That pursuant to s13K of the Family Law Act the Award made by the Learned Arbitrator on 21 June 2023 it is impracticable for some or all of it to be carried out. The Orders requiring the wife to transfer her interest in [Town J] to the husband are impracticable and incapable of being put into effect without the wife being present in [Country B] for the purpose of signing a Transfer. The Wife is contractually bound by such obligation. As such, the Order transferring the wife’s interest to the husband is incapable of being put into effect.…15.Any transfer of interest in the company must be done in [Country B] regarding the [R Company]. Because there is no Order making the Respondent comply with this as part of her receiving her. Own share of the matrimonial pool, this will not be enforceable. An order is required to make the Respondent travel to [Country B] so she can comply with the Order, similarly to that above relying on Pavic as a precedent. (As per the original) In his Outline of Case filed 1 February 2024 the husband submitted that the determinations in the Award that the wife transfer to him her interest in the Town J property and to transfer to him her share in R Company, are “unenforceable” and “cannot be done”, as they require the wife to go to Country B to affect such transfers. The import of his case shifted in oral submissions at the review hearing, saying that this requirement meant that the implementation of these determinations is “impossible”, in the sense that the wife has not attended in Country B to give effect to them.The H Property