AYDIN & TOH
[2021] FamCA 44
FAMILY COURT OF AUSTRALIA
| AYDIN & TOH | [2021] FamCA 44 |
| FAMILY LAW – NATIONAL ARBITRATION LIST – respondent opposing registration of arbitral award – various “reasons” advanced – none impugning the arbitration so as to render it void ab initio, that being the test under Regulation 67Q(3) – arbitral award registered. |
| Family Law Act 1975 (Cth) ss 13E, 13K Family Law Regulations 1984 (Cth) reg 67Q Family Law Rules 2004 (Cth) |
| Entezam & Devi [2021] FamCA 25 |
| APPLICANT: | Mr Aydin |
| RESPONDENT: | Ms Toh |
| FILE NUMBER: | PAC | 3702 | of | 2018 |
| DATE DELIVERED: | 12 February 2021 |
| PLACE DELIVERED: | Melbourne |
| PLACE HEARD: | Melbourne |
| JUDGMENT OF: | Wilson J |
| HEARING DATE: | On the papers |
| DATE OF FINAL SUBMISSION: | 5 February 2021 |
REPRESENTATION
| COUNSEL FOR THE APPLICANT: | Mr P. Schroder |
| SOLICITOR FOR THE APPLICANT: | Rafton Family Lawyers |
| COUNSEL FOR THE RESPONDENT: | Not applicable |
| SOLICITOR FOR THE RESPONDENT: | Not applicable |
Orders
Pursuant to reg 67Q(5) of the Family Law Regulations and s 13H of the Family Law Act the arbitral award of Malcolm Gittoes-Caesar made on 18 November 2020 be and is hereby registered.
The arbitral award that has by paragraph 1 of these orders been registered has, pursuant to s 13H(2) of the Family Law Act, effect as if it is a decree made by this Honourable Court.
I dismiss the respondent’s opposition to the applicant’s application to register the arbitral award.
Note: The form of the order is subject to the entry of the order in the Court’s records.
IT IS NOTED that publication of this judgment by this Court under the pseudonym Aydin & Toh has been approved by the Chief Justice pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth).
Note: This copy of the Court’s Reasons for Judgment may be subject to review to remedy minor typographical or grammatical errors (r 17.02A(b) of the Family Law Rules 2004 (Cth)), or to record a variation to the order pursuant to r 17.02 Family Law Rules 2004 (Cth).
| FAMILY COURT OF AUSTRALIA AT MELBOURNE |
FILE NUMBER: PAC 3702 of 2018
| Mr Aydin |
Applicant
And
| Ms Toh |
Respondent
REASONS FOR JUDGMENT
Introduction
On 13 March 2020 orders were made in the Federal Circuit Court of Australia referring the property aspects of this proceeding to arbitration pursuant to s 13E of the Family Law Act. The parties appointed their arbitrator who heard the arbitration on 17 September 2020 and published the arbitral award on 18 November 2020. The arbitrator’s orders gave effect to an overall division of assets as to 75% in favour of the applicant husband and 25% in favour of the respondent wife.
The applicant applied to register the arbitral award on 19 November 2020. The respondent has opposed the registration of the award. On 17 December 2020 his Honour Judge Dunkley ordered the transfer of this proceeding to this court. On 22 December 2020 I made directions for the parties to file their evidence on this application and adjourned the further hearing to 4 February 2021. On 4 February 2021 I made orders by consent upon the respondent undertaking to the court not to disburse or deal with the sale of proceeds of certain real estate pending my determination on this application to register the award.
In essence, the respondent submitted that the award should not be registered for several reasons. They included the following, all of which were drafted by the respondent –
a)the respondent’s lack of capacity;
b)the applicant intentionally providing misleading information;
c)the applicant giving false evidence; and
d)a change in circumstances such that “the award no longer fits”.
Synopsis
For the reasons that follow in my view the arbitral award in this case should be registered. In my judgment the respondent failed to make out her case under Regulation 67Q(3) for orders that I refuse to register the award.
Regulation 67Q(3)
In Entezam & Devi[1] I examined the interrelationship between a party’s opposition to registering an arbitral award on the one hand and, once the award is registered, a party seeking orders to set aside the award under s 13K(2)(a) – (d). For reasons set out in Entezam & Devi, the reasons a court might accept under Regulation 67Q(3) as grounding an order refusing to register the arbitral award must address a reason rendering the arbitration void ab initio. But before any application may be entertained by the court for orders under s 13K(2), the court must first give its imprimatur to the award by registering it. Unless and until the award is registered, the court knows nothing about the award. Accordingly, the scheme of the arbitration provisions in the Family Law Act, the Family Law Regulations and the Family Law Rules is to the effect that the award must be registered before any application can be made under s 13K(2).
[1] [2021] FamCA 25.
The issue in this case is whether the requirements of Regulation 67Q(3) were met. In my view they were not.
Material in support of the Regulation 67Q(3) issue
The respondent was not represented before me. She made two substantial affidavits, the first on 8 December 2020 and the second on 14 January 2021. She prepared each without legal assistance. She also prepared written submissions filed 5 February 2021 in accordance with directions given by me. She relied on the following grounds, which I have recorded below verbatim with errors in the original documentation –
1) I lacked capacity to take part in Arbitration
a. I lose my lawyer before the Arbitration started.
b. I was too emotional.
c. I did not understand fully for Legal vocabulary.
d. Too late to get a translator or a replacement lawyer.
e.I have been told by my previous lawyer to come that morning to adjourn the Arbitration.
Her allegation that the terms of the award “no longer fit” seemed to be referrable to her contention that one or more parcels of land, the subject of the arbitration, had been sold prior to the arbitral hearing.
In Entezam & Devi I held that a “reason” to which Regulation 67Q is directed must be a reason connected to the arbitration itself namely, the validity of the process, the consensus of the parties or the integrity of the process. Issues directed to impugning the conduct of the arbitration, especially issues concerning lack of procedural fairness or issues touching upon whether the arbitrator brought an impartial mind to bear in the arbitration go to a consideration of s 13K(2)(a) – (d), themselves pertinent to an application to set aside the award once registered.
On behalf of the applicant written submissions were prepared by counsel for the award registration application. Counsel invited my attention to the respondent’s complaint that the arbitrator failed to comply with s 13E(2)(c) of the Family Law Act. No such section exists. The applicant’s counsel also submitted –
a)the provision of legal aid is not extended to financial arbitrations;
b)no application was made for an interpreter during the arbitration;
c)the respondent’s assertions that she cried during the arbitration are an embellishment and the award is silent in relation to the respondent allegedly crying;
d)the respondent’s adjournment applications were dealt with by the arbitrator and, contrary to the respondent’s contentions before me, the respondent submitted to the arbitrator that she wished to proceed;
e)the respondent did not produce a transcript of the arbitral hearing so the resolution of conflicting versions of events during the arbitration was near impossible;
f)the fact that the respondent is disgruntled with the outcome of the arbitration is not a reason for declining to register the award; and
g)the phase of applying to register the award is different to the phase of applying to set aside the arbitral award.
The statutory regime under the Family Law Act governing arbitral awards was examined in Entezam & Devi. I incorporate those reasons here. In order for a party to succeed in an application under Regulation 67Q for an order that an arbitral award not be registered, the reason for such an order must be a reason pursuant to which the entire arbitration is void ab initio. That may be by reason of –
a)lack of consensus to arbitration;
b)lack of qualification of the arbitrator; or
c)the arbitrator going beyond the initial reference to arbitration thereby invalidating the arbitral process.
The respondent does not rely on any of those grounds on this application for orders pursuant to which the award is not registered. The reasons advanced address the conduct of the arbitration. If any are valid, they could be called in aid in an application brought by the respondent under s 13K(2) for orders setting aside the award.
In my view no reason has been advanced by the respondent pursuant to which a conclusion can be reached to the effect that the arbitration is void ab initio.
In those circumstances I make an order registering the arbitral award published by Malcolm Gittoes-Caesar on 18 November 2020 and I dismiss the respondent’s opposition to the applicant’s motion.
I certify that the preceding fourteen (14) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Wilson delivered on 12 February 2021.
Associate:
Date: 12 February 2021
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