Entezam and Devi (No 2)

In *Entezam & Devi (No 2)*, the Family Court of Australia considered an application for costs following a contested application to register an arbitral award. The applicant sought an order for costs under section 117(2A) of the *Family Law Act 1975* (Cth), arguing that the respondent was wholly unsuccessful in resisting the registration and had obtained a worse outcome than an offer of compromise. The court was required to determine whether the respondent's opposition to the registration of the arbitral award was so unsuccessful or unreasonable as to warrant a costs order against her, and whether the applicant's grounds for seeking costs under section 117(2A) were made out.

The court's reasoning centred on the novel point raised regarding the interpretation of Regulation 67Q(3) of the *Family Law Regulations 1984* (Cth). The applicant had successfully argued that the respondent's grounds for challenging the award did not fall within the scope of "any reason" contemplated by the regulation, as they were not connected to the validity of the arbitral process, the parties' consensus, or the integrity of the process. However, the court noted that prior to its decision, several Federal Circuit Court authorities had interpreted Regulation 67Q(3) as being synonymous with the grounds for setting aside an award under sections 13J and 13K of the *Family Law Act*. Consequently, the court found that the respondent had a rational jurisprudential basis for her challenge, which, although ultimately unsuccessful, was not untenable and accorded with prevailing authority at the time.

Given that the respondent's arguments were based on existing Federal Circuit Court authority and that the point before the court was novel in the Family Court, the judge determined that it was appropriate for the respondent to have raised the arguments she did. The court found no merit in the applicant's submissions under sections 117(2A)(c) and (e), concluding that while the respondent failed in her opposition to registration, she was entitled to take the points she did. Furthermore, the court found that issues relating to offers of compromise were not relevant to the application concerning the registration of the award. Accordingly, the court made an order under section 117(1) of the *Family Law Act*, requiring each party to bear their own costs of and incidental to the application to register the award.