Sato & Sato
[2022] FedCFamC1F 639
Federal Circuit and Family Court of Australia
(DIVISION 1)
Sato & Sato [2022] FedCFamC1F 639
File number(s): SYC 6067 of 2021 Judgment of: WILSON J Date of judgment: 31 August 2022 Catchwords: FAMILY LAW – National Arbitration List –– impasse arising in the conduct of the arbitration – applicant taking no step to participate in the arbitration after consenting under s 13E – s 13F orders sought – proceeding removed from the National Arbitration List. Legislation: Family Law Act ss 13E and 13F Cases cited: Entezam & Devi (2021) 62 Fam LR 637
Griffiths & Griffiths [2022] FedCFamC1F 219
Seldon & Seldon [2020] FamCA 762
Division: Division 1 First Instance Number of paragraphs: 19 Date of Hearing: On the Papers Date of last correspondence: 23 August 2022 Place: Melbourne Solicitor for the Applicant: Litigant in person Solicitor for the Respondent: Marks Griffiths & Bova Solicitors ORDERS
SYC 6067 of 2021 FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 1)
BETWEEN: MS SATO
Applicant
AND: MR SATO
Respondent
order made by:
WILSON J
DATE OF ORDER:
31 AUGUST 2022
THE COURT ORDERS THAT:
1.Pursuant to s 13F of the Family Law Act I direct that the operation of the order referring this proceeding to arbitration under s 13E cease forthwith; and
2.The entirety of this proceeding is referred to the National Assessment Team for allocation to a senior judicial registrar of Division 2 of the court for ongoing case management.
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 Sato & Sato has been approved pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth).
REASONS FOR JUDGMENT
WILSON J
By letter dated 23 August 2022, the arbitrator appointed in pursuance of s 13E of the Family Law Act applied to me in my capacity as judge-in-charge of the National Arbitration List for directions under s 13F.
Something of any impasse has arisen in the conduct of the arbitration in this proceeding. On 15 July 2022 the parties approached the arbitrator seeking an extension of time to complete their arbitration. Very helpfully, the arbitrator (a very experienced and diligent arbitrator who is regularly appointed as an arbitrator in cases in the National Arbitration List) suggested a number of available dates in August and September so as to conclude the arbitration by 4 November 2022.
On 26 July 2022 the retainer between the applicant and the applicant’s solicitors was terminated with the consequence that Mr B and Mr C were no longer involved in the arbitration.
The arbitrator wrote the parties by letter dated 8 August 2022. The relevant provision was as follows –
As the proposed Arbitration cannot be simply abandoned, the Arbitration being an Order of the Court on 4 July 2022, I seek your assistance in the provision of an address for the Applicant, in order that I can contact her to explain the limited options available to her, and the prejudice she may suffer should she not comply with directions, or worse, ignore the Arbitration, with the distinct possibility of the Arbitration being conducted on an undefended basis on 31 August 2022
On 12 August 2022 the arbitrator wrote to the applicant informing the applicant directly that she was required to comply with directions made by the arbitrator unless excused from so doing by the arbitrator or by court order. The arbitrator pointed out that the arbitration would proceed as fixed on 7 July 2022 in the arbitrator’s chambers on 31 August 2022 unless the applicant was excused and that if the applicant failed to attend or appear with representation, orders may be made against the applicant on an undefended basis. Perfectly property, the arbitrator informed the applicant that the arbitrator strongly recommended that the applicant obtain legal advice as to the options available to the applicant.
Nothing indicated that the arbitrator received a response to his 12 August 2022 letter.
On 18 August 2022 the solicitor for the respondent wrote to the arbitrator informing the arbitrator that the respondent had filed an amended response dealing with property and parenting issues having regard to the fact that the applicant had failed to respond to the respondent’s invitation to attend a mediation. The respondent’s solicitors further informed the arbitrator that the applicant had not complied with directions –
(a)for the filing of any amended application for final orders;
(b)for the making of further disclosure; and
(c)for an updated financial statement.
The respondent’s solicitors sought guidance about whether the arbitration would proceed as scheduled.
On 22 August 2022 the arbitrator sent an email to the solicitor for the respondent and to the applicant directly. In that email the arbitrator stated that the applicant had failed to comply with directions and she had not continued to participate in the arbitration. The arbitrator stated that he was left with two choices, namely –
(a)refer the matter to the court for further directions; or
(b)continue with the arbitration on the allocated date of 31 August on the basis of the evidence before the arbitrator and, if necessary, proceed on an undefended basis.
The arbitrator invited an urgent response from the respondent’s solicitor as well as from the applicant.
On 22 August 2022 the respondent’s solicitors wrote to the arbitrator stating, in substance, that the respondent’s position was that it was not appropriate for the matter to proceed to arbitration because –
(a)the respondent had amended his response filed on 17 August 2022 to incorporate parenting issues;
(b)the wife had failed to comply with all directions made by the arbitrator or 7 July 2022; and
(c)the wife was no longer legally represented.
The respondent’s solicitors sought an order referring the proceeding to the National Arbitration List for directions.
Consideration
The applicant has taken no step to participate in the arbitration since attesting her assent to the property component of the proceeding being referred to arbitration pursuant to s 13E. The applicant has failed to file documents in accordance with previous orders. She has failed to produce disclosure. She has failed to provide an updated financial statement. She has dismissed her legal representatives.
It seems readily apparent that whatever consent to arbitration she may once have given, that consent has either been withdrawn as evidenced by her conduct or she has taken no step to facilitate the orderly and expeditious progress of the arbitration. That was curious as the applicant stood to benefit from the speed with which the arbitrator had earmarked this case for hearing.
The arbitrator had earlier expressed as one option conducting the arbitration on an undefended basis. Such a course carried risk especially in circumstances where any award later published was not the product of ongoing consent of all parties.[1] Any award may well have been met with objection upon application for registration.[2] Alternatively, even if registered on the basis that the applicant did not object within 28 days of application for registration she may well have successfully invoked s 13J on a review application on a question of law. Of course, that was very much hypothetical because the wife simply absented herself from the entire arbitration process once directions in it were made on 7 July 2022.
[1] Griffiths & Griffiths [2022] FedCFamC1F 219.
[2] Entezam & Devi (2021) 62 Fam LR 637.
Even assuming power to do so (which I doubt there is) the possibility of proceeding on an undefended basis evaporated once the respondent’s solicitors wrote to the arbitrator stating that it was not appropriate to proceed to arbitration.
In those circumstances in my view it is appropriate to terminate the operation of the order referring the proceeding to arbitration. The respondent wishes to invigorate the parenting aspect of the litigation. He should be permitted to do that. However, not only will the parenting aspect of the case return to Division 2 of this court but so too with the property aspect of the litigation.
The orders to be pronounced are as follows –
(a)pursuant to s 13F of the Family Law Act I direct that the operation of the order referring this proceeding to arbitration under s 13E cease forthwith; and
(b)the entirety of this proceeding, that is to say all parenting applications as well as the property application is referred to the National Assessment Team for allocation to a senior judicial registrar of Division 2 of the court for ongoing case management.
Finally I express my gratitude to the arbitrator for his presence of mind in seeking directions as soon as the conundrum before his began to emerge. The arbitrator referred to the usual course[3] in cases in the National Arbitration List of producing arbitral award within 4 to 6 months of the s 13E order. The arbitrator did his best to accommodate the parties in the circumstances of this case. For reasons presently unknown, the applicant having consented to the s 13E order being made, thereafter did nothing to give herself the benefit of the arbitration process, all to her own detriment which she brought upon herself.
[3] This is not an immutable requirement, as was canvassed in Seldon & Seldon [2020] FamCA 762 so any suggestion that the practice is a mandatory requirement puts the matters too emphatically.
I certify that the preceding nineteen (19) numbered paragraphs are a true copy of the Reasons for Judgment of the Honourable Justice Wilson. Associate:
Dated: 31 August 2022
0
2
0