Beirne & Beirne
[2021] FedCFamC1F 59
•16 September 2021
FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA
(DIVISION ONE)
Beirne & Beirne [2021] FedCFamC1F 59
File number(s): BRC 10071 of 2021 Judgment of: WILSON J Date of judgment: 16 September 2021 Catchwords: FAMILY LAW – ARBITRATION – application to register arbitral award – wife opposing registration and wishing property issues to be determined in the FCFCOA (Division 2) – held, award registered. Legislation: Family Law Act 1975 (Cth) ss 10L, 13E, 13H, 13J and 13K Cases cited: Entezam v Devi (2021) 62 Fam LR 637 Division: Division 1 First Instance Number of paragraphs: 12 Date of last submissions: 2 September 2021 Date of hearing: 18 August 2021 Place: Melbourne Solicitor for the Applicant: Baldwins Lawyers Counsel for the Respondent: Mr C. Bolovan Solicitor for the Respondent: KLM Solicitors ORDERS
BRC 10071 of 2021 FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 1)
BETWEEN: MR BEIRNE
Applicant
AND: MS BEIRNE
Respondent
ORDER MADE BY:
WILSON J
DATE OF ORDER:
16 SEPTEMBER 2021
THE COURT ORDERS THAT:
1.Pursuant to s 13H of the Family Law Act 1975 the arbitral award be and is hereby registered.
2.The arbitral award that has by this order been registered has, pursuant to s 13H(2) of the Family Law Act 1975, effect as if it is a decree made by this Honourable Court.
3.I dismiss the wife’s application to transfer this proceeding to Division 2 of the Federal Circuit and Family Court of Australia.
4.Any application by the wife under either s 13 J or s 13 K of the Family Law Act 1975 must be filed with accompanying affidavit material by 4:00pm on 18 October 2021.
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 pseudonyms Beirne & Beirne is approved pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth).
REASONS FOR JUDGMENT
WILSON J
INTRODUCTION
On 20 May 2021 the arbitrator appointed under a private arbitration constituted pursuant to the provision of s 10L of the Family Law Act 1975 published her arbitral award relevant to this proceeding.
On 14 July 2021 the applicant in the arbitration applied to register the final amended arbitral award. The respondent in the arbitration, the wife, opposed the husband’s application to register the award. She expressly stated she did not rely on any of the three grounds for refusing to register an award as were set out in Entezam v Devi.[1] She contended that I should refuse to register the award and instead remit the proceeding to (what was then) the Federal Circuit Court of Australia (“FCCA”), that court now being Division 2 of the Federal Circuit and Family Court of Australia (“FCFCOA”).
[1] (2021) 62 Fam LR 637.
SYNOPSIS
For the reasons that follow, I make an order under s 13H of the Family Law Act 1975 registering the amended arbitral award. If the wife wishes to press an application to set aside or to vary the award under either s 13J or s 13K of the Family Law Act 1975 she is entitled to do so as long as any such application is made in accordance with prescribed time limits. I dismiss her application to remit the proceeding to Division 2 of the FCFCOA.
RECENT FACTUAL SETTING
The amount involved in this litigation is modest, less than $350,000 comprised mainly of the land and improvements at B Street, Suburb D, Queensland.
The parties commenced a private arbitration before an accredited arbitrator, certified by the Australian Institute of Family Law Arbitrators and Mediators pursuant to regulation 67B of the Family Law Act 1975. Despite the arbitrator providing her final amended award on 20 May 2021, on 25 June 2021 the wife commenced proceeding BRC10071/2021 in the Brisbane Registry of the FCCA. In that proceeding she sought interim and final property orders. The wife made an affidavit on 25 June 2021 in the FCCA proceeding, in which she disclosed having participated in the arbitration, the award from which is now sought to be registered. As is apparent from the correspondence exhibited by the wife to her 5 June 2021 affidavit, the arbitrator published what was intended to be the arbitrator’s final award on 12 April 2021. Being concerned about aspects of that award the wife instructed her solicitors to write to the arbitrator in detailed terms with what amounted to submissions agitating various findings and conclusions expressed by the arbitrator in her 12 April 2021 award. The arbitrator considered those submissions and published what she described as the “final amended award” on 20 May 2021. Various alterations to the 12 April 2021 award were made in the 20 May 2021 award, those amendments being recorded as deletions, underlines or strike throughs in the 20 May 2021 final award.
The husband has applied to register the final amended award.
The wife based her opposition to registration on the grounds mentioned above. As her primary position the wife asserts that “the award is founded…on a misapplication of the otherwise correctly stated legal principles referred to within the award”. In developing that contention the wife’s position was put in the following terms –
“With respect, the arbitrator misapplied the law in a fundamental way by failing to give adequate weight or consideration to the matters raised at paragraphs 7- 8 above. The wife submits that this misapplication of the law effectively saps the arbitral award of its characteristic of being an award. It is a deviation by the arbitrator to a place far outside the discretion she was duty bound by the Regulations and the Act to exercise.”[2]
[2] Paragraph 22 of the written submissions prepared by Mr C. Bolovan of counsel for the wife dated 18 August 2021.
The argument about the alleged erroneous attribution of weight may – repeat, may – go to a matter to which s 13J or s 13K applies. But it does not go to any of the three matters to which s 13H is directed, as espoused in Entezam v Devi.[3] If the wife feels aggrieved about some aspect of the arbitration her avenues of redress lay in s 13J or s 13K. Those two sections address different considerations when applying to set aside an arbitral award as against applying to vary one. If the wife wishes to ventilate an application under either section she should have time to do so. If she is minded to do so, I will require her to bring such an application by 4:00pm on 18 October 2021.
[3] (2021) 62 Fam LR 637.
The wife applied for an order remitting this proceeding to Division 2 of the FCFCOA. I refuse that application. The proceeding is presently in the National Arbitration List in Division 1 of the FCFCOA. While it is undesirable that I say more on the point than this, it must be observed that –
(a)the parties decided to participate in arbitration as their chosen dispute resolution procedure and participated in that process to finality;
(b)evidentiary matters as well as factual matters have been determined; and
(c)the wife may well be met with a plea of res judicata in respect of her proceeding pending in Division 2 of the FCFCOA.
CONCLUSION
Pursuant to s 13H of the Family Law Act 1975 I make an order for the registration of the final amended arbitral award in this proceeding and that, upon registration, the final award takes effect as if a decree of this court.
Any application by the wife for orders made under s 13J or s 13K of the Family Law Act 1975 must be brought by 4:00pm on 18 October 2021.
I dismiss the wife's application to remit this proceeding to Division 2 of the FCFCOA.
I certify that the preceding twelve (12) numbered paragraphs are a true copy of the Reasons for Judgment of the Honourable Justice Wilson. Associate:
Dated: 16 September 2021
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