Entezam & Devi

Case [2021] FamCA 25


FAMILY COURT OF AUSTRALIA

ENTEZAM & DEVI [2021] FamCA 25
FAMILY LAW – NATIONAL ARBITRATION LIST – Regulation 67Q(3) – 15 reasons advanced by respondent for not registering arbitral award – examination of phrase “any reason” – relationship with grounds under s 13K(2) for setting aside an arbitral award – held, award registered – no reason for not registering award made out.
Evidence Act 1995 (Cth), s 140
Family Law Act 1975 (Cth), ss 4AA, 13E, 13H(1), 13J, 13K, 79, 90SM
Family Law Regulations 1984 (Cth), regs 67B, 67P(4)(b), 67Q, 67O
Family Law Rules 2004 (Cth), r 26B.32
UNCITRAL Model Law on International Commercial Arbitration (as adopted by the United Nations Commission on International Trade Law on 21 June 1985, and as amended on 7 July 2006)

AJH Lawyers Pty Ltd v Careri (2011) 34 VR 236
Braddon v Braddon (2018) 59 Fam LR 234
Briginshaw v Briginshaw (1938) 60 CLR 336

Dougherty v Dougherty (1987) 163 CLR 278

Ebner v Official Trustee in Bankruptcy (2000) 205 CLR 337

Gronow v Gronow (1979) 144 CLR 513
House v The King (1936) 55 CLR 499

Isbester v Knox City Council (2015) 255 CLR 135
Johnson v Johnson (2000) 201 CLR 488
Kan & Aamer [2020] FamCA 1014
Loomis v Pattison (2020) 61 Fam LR 415

Mallet v Mallet (1984) 156 CLR 605

Michael Wilson & Partners Ltd v Nicholls (2011) 244 CLR 427

Norbis v Norbis (1986) 161 CLR 513

Pavic & Pavic [2018] FCCA 3386
Re JRL; Ex parte CJL (1986) 161 CLR 342

Stanford v Stanford (2012) 247 CLR 108

Australian Law Reform Commission, Family Law for the Future – An Inquiry into the Family Law System (Report No 135, March 2019)
Daniel Centner & Megan Ford, A Brief History of Arbitration (2019) 48(4) The Brief 58
Frank D. Emerson, History of Arbitration Practice and Law (1970) 19(1) Cleveland State Law Review 155
William G. Horton, A Brief History of Arbitration (2017) 47(1) Advocates’ Quarterly 12
Professor Patrick Parkinson, Family Property Arbitration: Exploring the New Potential (Paper presented at ESFLPG Weekend, Katoomba, June 2016) 9
Maria Lucia Passador, Challenging Arbitration: How Can Its History Inform Its Current (E-)Practice (2017) 24(2) Willamette Journal of International Law and Dispute Resolution 233
Derek Roebuck, Sources for the History of Arbitration: A Bibliographical Introduction (1998) 14(3) Arbitration International 237
Dr Josh Wilson QC, Adequate Arbitral Reasons After Westport – Has the Tension Been Resolved to Any Real Degree? (2015) Resolution Institute 9

APPLICANT: Mr Entezam
RESPONDENT: Ms Devi
FILE NUMBER: SYC 2844 of 2018
DATE DELIVERED: 12 February 2021
PLACE DELIVERED: Melbourne
PLACE HEARD: Melbourne
JUDGMENT OF: Wilson J
HEARING DATE: 29 January 2021
DATE OF FINAL SUBMISSION: 5 February 2021

REPRESENTATION

COUNSEL FOR THE APPLICANT: Mr A. Singh
SOLICITOR FOR THE APPLICANT: Opal Legal
COUNSEL FOR THE RESPONDENT: Mr A. Strik
SOLICITOR FOR THE RESPONDENT: Jack Rigg Solicitors

Orders

  1. Pursuant to reg 67Q(5) of the Family Law Regulations and s 13H of the Family Law Act the arbitral award of…

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Entezam & Devi [2021] FamCA 25
Case
[2021] FamCA 25
Decision Date

CaseChat Overview and Summary

In the matter of *Entezam & Devi*, the applicant sought to register an arbitral award made on 28 October 2020. The respondent advanced fifteen reasons for the Court not to register the award, arguing that these constituted "any reason" within the meaning of regulation 67Q(3) of the Family Law Regulations, which would preclude registration.

The central legal issue before Wilson J was the interpretation of the phrase "any reason" in regulation 67Q(3) and its relationship with the grounds for setting aside an arbitral award under section 13K(2) of the *Family Law Act 1975* (Cth). The Court was required to determine whether the reasons advanced by the respondent were sufficient to justify refusing the registration of the arbitral award.

Wilson J reasoned that the phrase "any reason" in regulation 67Q(3) should not be interpreted so broadly as to encompass any conceivable objection. Instead, the Court held that the reasons for non-registration must be substantial and relate to the integrity or validity of the award, akin to the grounds for setting aside an award under section 13K(2). As the respondent failed to establish any such substantial reason, the Court found no basis to refuse registration. Consequently, the arbitral award was registered pursuant to regulation 67Q(5) and section 13H of the *Family Law Act*, and it was ordered to have effect as if it were a decree made by the Court.

Orders

Orders of the court

1.

Pursuant to reg 67Q(5) of the Family Law Regulations and s 13H of the Family Law Act the arbitral award of Heinrich Moser made on 28 October 2020 be and is hereby registered.

2.

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.

Note: The form of the order is subject to the entry of the order in the Court’s records.

Background

Background to the litigation

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Evidence

Evidence Before The Court

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Decision

Reasons for decision

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Ratio Decidendi

Legal Principle Established

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