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

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…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

Continue reading AYDIN & TOH

Details

AGLC: AYDIN & TOH [2021] FamCA 44
Case: [2021] FamCA 44
Decision Date

CaseChat Overview and Summary

The Family Court of Australia considered an application by Mr Aydin (the applicant) to register an arbitral award made in property settlement proceedings, which was opposed by Ms Toh (the respondent). The dispute arose after an arbitrator, Malcolm Gittoes-Caesar, made an award dividing the parties' assets 75% to the applicant and 25% to the respondent. The applicant sought to register this award, but the respondent raised several objections.

The court was required to determine whether the respondent had advanced sufficient reasons under Regulation 67Q(3) of the Family Law Regulations 1984 (Cth) to refuse the registration of the arbitral award. The respondent's objections included claims of lack of capacity, misleading information provided by the applicant, false evidence, and a change in circumstances rendering the award unsuitable. The central legal issue was whether these grounds were sufficient to render the arbitration void ab initio, which is the test for refusing registration under Regulation 67Q(3).

Justice Wilson reasoned that the grounds advanced by the respondent did not meet the threshold for refusing registration. Drawing on previous authority, the court held that reasons for refusing registration must demonstrate that the arbitration was void from its inception, such as a lack of consensus, an unqualified arbitrator, or the arbitrator exceeding their mandate. The respondent's arguments, concerning her capacity, the applicant's conduct, and the perceived suitability of the award, were found to relate to the conduct of the arbitration itself. Such issues, if valid, would be grounds for an application to set aside the award under section 13K(2) of the Family Law Act 1975 (Cth) *after* registration, not reasons to prevent registration in the first place.

Consequently, the court ordered the registration of the arbitral award made on 18 November 2020 and dismissed the respondent's opposition to the application. The registered award was deemed to have the effect of a decree made by the Family Court.

Orders