FEDERAL CIRCUIT COURT OF AUSTRALIA
| BRADDON & BRADDON | [2018] FCCA 1845 |
| Catchwords: FAMILY LAW – Arbitration – registration of Arbitral Award – application to set aside Arbitral Award – where it is asserted that the Arbitrator has made an error of law – consideration of whether the Arbitral Award is “unreasonable or plainly unjust” – scope of review of Arbitral Award – whether review “on questions of law” is confined to “error of law” – adequacy of reasons given by Arbitrator – whether the Arbitral Award adequately or tolerably disclosed the Arbitrator’s reasoning. |
| Legislation: Family Law Act 1975, ss.10M, 13A, 13E, 13F, 13G, 13H, 13J, 13K, 75(2), 78, 79, 81, 117 Family Law Regulations 1984, regs.67B, 67F, 67G, 67I, 67L, 67O, 67P, 67Q Commercial Arbitration Act 2010 (NSW) Commercial Arbitration Act 1984 (NSW), s.38 International Arbitration Act 1974 (Cth) International Arbitration Amendment Act 2010 (Cth) Legal Profession Uniform Law Australian Solicitors’ Conduct Rules 2015, reg.21 The Married Women’s Property Acts 1890‑1952 The Married Women’s Property Act 1882 (Imp) |
| Applicant: | MR BRADDON |
| Respondent: | MS BRADDON |
| File Number: | PAC 3953 of 2015 |
| Judgment of: | Judge Harman |
| Hearing date: | 18 June 2018 |
| Date of Last Submission: | 18 June… |
Continue reading Braddon & Braddon
Sign in free to access the full text
- AGLC
- Braddon & Braddon [2018] FCCA 1845
- Case
- [2018] FCCA 1845
- Decision Date
CaseChat Overview and Summary
The legal issues before the court were whether the arbitral award should be registered and, if so, whether it should be affirmed. This involved considering the requirements for registration under Regulation 67Q of the Family Law Regulations and the grounds for review or setting aside a registered award under sections 13J and 13K of the Family Law Act 1975.
Judge Harman reasoned that Regulation 67Q did not require a sealed copy of the application to be served and that the 28-day period for objecting to registration commenced upon the filing of the application. The court was satisfied that Mr. Braddon and his legal representatives were aware of the filing of the application. Given this awareness and the absence of any objections brought to the court's attention within the prescribed period, the court found that the award should be registered. Furthermore, no grounds were raised or established that would permit the court to review or set aside the award under sections 13J or 13K of the Family Law Act.
Consequently, the court affirmed the arbitral award, dismissed all extant applications, removed all issues from the list of matters awaiting hearing, and ordered that each party bear their own costs of the proceedings.
Orders
Orders of the court
1.
Affirm the Arbitral Award dated 22 January, 2018 and Registered by Order 1 March, 2018.
2.
Dismiss all extant Applications and remove all issues from the list of matters awaiting hearing.
3.
Each party shall pay their own costs of and incidental to these proceedings (being proceedings commenced by an Application in the Arbitration filed 7 March, 2018).
Background
Background to the litigation
Full text does not contain this section.
Evidence
Evidence Before The Court
Full text does not contain this section.
Decision
Reasons for decision
Full text does not contain this section.
Ratio Decidendi
Legal Principle Established
Regulation 67Q of the Regulations is in the following terms:FAMILY LAW REGULATIONS-REG 67Q REGISTRATION OF AWARDSRegistration of award (Act s 13H) (1) For section 13H of the Act, an application to register an award made in an arbitration must be in accordance with Form 8. (2) The applicant must serve a copy of the application on each other party to the award. (3) A party on whom an application is served may, within 28 days after service, bring to the attention of the court any reason why the award should not be registered. Note: An example of a way of bringing a matter to the attention of the court is by filing an affidavit. (4) If nothing is brought to the court's attention under subregulation (3), the court must register the award. Regulation 67Q of the Regulations does not specify that a sealed copy of the Application must be served. A Form 8 Application is not allocated a Court event or return date. Whilst the point was not taken at the hearing of the Application, it has some relevance. The period of 28 days in which a party might “…bring to the attention of the court any reason why the award should not be registered” could not reasonably be expected to commence until such time as that party was aware that the Application had, in fact, been filed with the Court (such filing being the trigger for the commencement of that period). Any concern that Mr Braddon may have been unaware that the Form 8 had, in fact, been filed is obviated by the above correspondence from Chambers. I am satisfied that Mr Braddon and his then legal representatives were aware that the Application had been filed. The basis upon which the matter is approached might vary depending upon which legislative power is to be exercised. The Court’s powers following registration of an Award are set out at sections 13J and 13K of the Family Law Act as follows:FAMILY LAW ACT 1975 - SECT 13J Family Court or Federal Circuit Court can review registered awards (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) a single judge of the Family Court; or (b) a single judge of the Family Court of a State; or (c) the Federal Circuit Court of Australia. 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 Court of Australia may: (a) determine all questions of law arising in relation to the arbitration; and (b) make such decrees as the judge or Federal Circuit Court of Australia thinks appropriate, including a decree affirming, reversing or varying the award. FAMILY LAW ACT 1975 - SECT 13K Family Court and Federal Circuit Court may set aside registered awards (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 Family Court; or(b) the Federal Circuit Court of Australia; 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.