Cooney and Fitzsimons
[2019] FCCA 373
•29 January 2019
FEDERAL CIRCUIT COURT OF AUSTRALIA
| COONEY & FITZSIMONS | [2019] FCCA 373 |
| Catchwords: FAMILY LAW – PROPERTY – Registration of arbitral award. |
| Legislation: Family Law Act 1975, ss.13E, 13H, 13J, 13K, 79A Family Law Regulations 1984, reg.67Q |
| Cases cited: Pavic & Pavic [2018] FCCA 3386 |
| Applicant: | MS COONEY |
| Respondent: | MR FITZSIMONS |
| File Number: | PAC 1620 of 2016 |
| Judgment of: | Judge Harman |
| Hearing date: | 29 January 2019 |
| Date of Last Submission: | 29 January 2019 |
| Delivered at: | Parramatta |
| Delivered on: | 29 January 2019 |
REPRESENTATION
| Solicitors for the Applicant: | Ms Hiloutakis of J Kartsounis & Co |
| Solicitors for the Respondent: | Mr Harb of Harb Lawyer |
ORDERS
The Arbitration Award of Mr John Berry dated 26 November 2018, is registered as it if were a Decree of the Federal Circuit Court of Australia.
All outstanding Applications and Responses are withdrawn and dismissed and all issues are removed from the list of matters awaiting hearing.
IT IS NOTED that publication of this judgment under the pseudonym Cooney & Fitzsimons is approved pursuant to s.121(9)(g) of the Family Law Act 1975 (Cth).
| FEDERAL CIRCUIT COURT OF AUSTRALIA AT PARRAMATTA |
PAC 1620 of 2016
| MS COONEY |
Applicant
And
| MR FITZSIMONS |
Respondent
REASONS FOR JUDGMENT
These proceedings come before the Court today following the engagement of the parties in Arbitration.
The proceedings are between parties Ms Cooney, the Applicant and the wife to the marriage which founds jurisdiction, and Mr Fitzsimons, the Respondent husband.
The proceedings have something of a history, having been commenced by an Application Initiating Proceedings filed 14 April 2016.
The proceedings were the subject of a number of interventions before referral to Arbitration.
The matter was commenced in the Family Court of Australia. The matter was the subject of three Registrar’s Conferences over a four month period before being transferred to this Court. At the time of transfer the good Registrar noted:
It is my view that neither party was willing to compromise to the degree required to settle the matter
The matter first came before this Court 6 December 2016. On that date the parties were ordered to attend private Family Dispute Resolution. There was a significant delay in the parties attending Family Dispute Resolution and the proceedings were adjourned on one occasion to allow compliance.
On 14 November 2017, Orders were made referring the proceedings to Arbitration. That Order, consistent with section 13E of the Family Law Act1975, was made by consent. There was, again, some delay in the parties attending to Arbitration. The matter was adjourned on three occasions to allow Arbitration to occur and conclude.
The delay in the proceedings advancing to conclusion was principally, but not solely, connected with the health of the Respondent.
Arbitration has now occurred.
An Application to Register an Arbitral Award (Form 8), was filed on 19 December 2018. That Application annexes an Arbitral Award by an arbitrator, John Berry of Counsel, dated 26 November 2018. The Application was served on 21 December 2018. A period of 28 days has passed since both filing and service.[1]
[1] Rule 26B.33 of the Family Law Rules 2004 provides:
Both parties appear today through their legal representatives. The Respondent indicates, through his Counsel, that there is no specific objection to registration of the Arbitral Award. It is indicated that there are a number of issues which may be raised, once there has been a full and proper opportunity to obtain instructions and give advice, going to an application for review or variation of the award. Those matters and the delay in obtaining instructions are, again, connected with the Respondent’s health.
Throughout the proceedings, the Respondent has experienced significant difficulties with diagnoses of cancer and treatment therefor. It would appear, regrettably, that there may be a further deterioration in the Respondent’s health.
On the basis that it is apprehended by the Respondent’s Counsel that a review of the Arbitral Award may be sought, an adjournment of the proceedings is sought to permit further time and opportunity to obtain instructions and give advice. In the context of that Application it is germane to consider the relevant provisions of the Act.
Section 13H of the Family Law Act 1975 provides for registration of Arbitral Awards with “…effect as if it [the Arbitral Award] were a decree made by [the] Court”.
Regulation 67Q of the Family Law Regulations 1984 provides what is required as regards any application for registration of an arbitral award and in the following terms:
Registration 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.
(5) If a party brings a matter to the court's attention under subregulation (3), the court must, after giving all parties a reasonable opportunity to be heard in relation to the matter, determine whether to register the award
Regulation 67Q(4) provides, in mandatory terms, that “…if nothing is brought to the court’s attention that the court must (emphasis added) register the award”. I accept (but need not consider or determine) that the Court might be argued to have power to extend this period if to do so would be in the interests of justice.
The bases upon which registration of an Arbitral Award might be opposed were considered by me in paragraphs 12-47 of my earlier decision in Pavic & Pavic [2018] FCCA 3386. The bases upon which registration of the Arbitral Award might be opposed are matters of a procedural nature fundamentally affecting the constitution of the arbitral tribunal or the capacity of the parties to consent or participate. Neither party suggests that any matter could be raised as a sufficient basis to oppose registration of the Arbitral Award. What is apprehended as possible is that instructions may be provided to seek to review the Arbitral Award.
As no valid basis is raised or suggested as capable of supporting an application to oppose registration of the Arbitral Award, I am satisfied that the Court is mandated to register the Award upon application of a party and absent objection.
The ability of a party to seek to impeach the Arbitral Award by either review (Section 13J of the Family Law Act 1975) or application to set aside the Arbitral Award (Section 13K of the Family Law Act 1975) is an entirely separate matter as to which two observations must be made.
Firstly, the Court’s power to entertain an application for review or to set aside an Arbitral Award is only enlivened once the Arbitral Award has been registered. The Court has no power to interfere with or, for that matter, enforce an Arbitral Award, until such time as the Award is registered.
Secondly, there is no mandated time in which an application for review or setting aside of an arbitral award must be made. Analogous to an application pursuant to section 79A Family Law Act 1975, the application can be made at any time (although any delay arising after grounds alleged to support the application becoming apparent may be relevant in the exercise of discretion).
Conclusion
For the above reasons I propose to register the Award.
Absent any objection to registration of the Arbitral Award, made within 28 days of service of the Application for Registration, registration is mandated (Regulation 67Q).[2]
[2] As no valid ground for objection to registration is suggested to arise I need not consider whether the Court has power to extend the objection period.
Adjournment is unnecessary as the only Application before the Court is for registration of the Arbitral Award. It is not suggested that any ground sufficient to oppose registration is available.
Registration of the Arbitral Award does not prejudice or impact upon the position of the Respondent. Registration of the Arbitral Award aids the Respondent. Should it transpire that, once the Respondent’s health is sufficiently recovered to permit further advice and instruction, the Respondent seeks to impeach the Arbitral Award, then any application for review or to set aside the Arbitral Award is facilitated by registration. Registration enlivens the Court’s review powers.
I am also conscious that the Family Law Act 1975, Family Law Regulations 1984 and Family Law Rules do not provide any time limitation with respect to an application to review or set aside an Arbitral Award. The Respondent’s right, if it might be so described, to make application for review, is thus preserved. The right is not prejudiced by registration. Indeed, registration enlivens the Court’s jurisdiction to receive and determine such an Application.
Accordingly and for those reasons, Orders are made, in the usual terms, to register the Arbitral Award and remove all issues from the list of cases awaiting hearing.
I certify that the preceding twenty-seven (27) paragraphs are a true copy of the reasons for judgment of Judge Harman
Date: 20 February 2019
Registration of awards made in arbitration
1.A copy of an application to register an arbitration award required to be served under subregulation 67Q(2) of the Regulations must be served within 14 days of the day on which the application is filed.
2.The applicant must file an Affidavit of Service within 7 days of the day on which a copy of the application is so served.
3.
2