FAMILY LAW – NATIONAL ARBITRATION LIST – application to register arbitral award – respondent to arbitration opposing registration of award – no basis shown – award registered.
J. Beames, General Orders of the High Court of Chancery (1815)
APPLICANT:
Ms Kan
RESPONDENT:
Mr Aamer
FILE NUMBER:
BRC
5739
of
2019
DATE DELIVERED:
4 December 2020
PLACE DELIVERED:
Melbourne
PLACE HEARD:
Melbourne
JUDGMENT OF:
Wilson J
HEARING DATE:
On the papers
DATE OF LAST SUBMISSIONS:
26 November 2020
REPRESENTATION
COUNSEL FOR…
Grounds of appeal
[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.
[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.
[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.
Consideration
[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.
[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.
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Details
AGLC
KAN & AAMER [2020] FamCA 1014
Case
[2020] FamCA 1014
Decision Date
CaseChat Overview and Summary
In the matter of *Kan & Aamer*, the applicant sought to register an arbitral award made by Ms C, an arbitrator appointed under the *Family Law Act 1975* (Cth). The respondent opposed the registration of this award.
The central legal issue before the Court was whether there was any basis to refuse the registration of the arbitral award, which had been made pursuant to a referral to arbitration.
Wilson J found that no basis had been shown by the respondent to oppose the registration of the award. The Court therefore made an order nunc pro tunc referring the proceeding to arbitration and, pursuant to section 13H of the *Family Law Act*, registered the arbitral award made on 21 August 2020. The registered award was given effect as if it were a decree made by the Court.
Orders
Orders of the court
Orders
1. I make an order nunc pro tunc under s 13E referring the whole of this proceeding to arbitration before Ms C, arbitrator, qualified as an arbitrator for the purposes of s 10M of the Family Law Act and regulations 67B and 67J of the Family Law Regulations.
2. Pursuant to s 13H of the Family Law Act the arbitral award made by Ms C on 21 August 2020 be and is hereby registered.
3. The arbitral award that has by the preceding paragraph 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.
IT IS NOTED that publication of this judgment by this Court under the pseudonym Kan & Aamer has been approved by the Chief Justice pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth).
Note: This copy of the Court’s Reasons for Judgment may be subject to review to remedy minor typographical or grammatical errors (r 17.02A(b) of the Family Law Rules 2004 (Cth)), or to record a variation to the order pursuant to r 17.02 Family Law Rules 2004 (Cth).