Nellie & Nellie

Case [2023] FedCFamC1F 1050

FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA

(DIVISION 1)

Nellie & Nellie [2023] FedCFamC1F 1050

File number: SYC 8520 of 2022
Judgment of: CAMPTON J
Date of judgment: 8 December 2023 
Catchwords: FAMILY LAW – REGISTRATION OF ARBITRAL AWARD – Where husband objects to the registration of an award pursuant to reg 67Q of the Family Law Regulations 1984 (Cth) – Consideration of circumstances in which a court would not register an award – Interpretation of the meaning of “any reason” within reg 67Q of the Family Law Regulations 1984 (Cth) – Whether a condition can be imposed upon registration – Where the refusal of an application to register an award pursuant to reg 67Q is not a discretionary determination – Where the dispute to registration presents a binary choice being either the objector demonstrates the findings of fact to establish a reason as contemplated by the scheme of the Act and the Regulations for the award not to be registered or they do not – Where it would be farcical if “any reason” for the purposes of reg 67Q(3) could be the vehicle to drive a dummy run to subsequent litigation – Application dismissed
Legislation:

Family Law Act 1975 (Cth) Pts IIIB, VIII, ss 10SM, 13A, 13E, 13H, 13J, 13K, 79

Family Law Regulations (1984) (Cth) reg 67B, 67Q

Federal Circuit and Family Court of Australia (Family Law) Rules 2021 (Cth) r 14.07
Cases cited:

Entezam v Devi (2021) 62 Fam LR 637; [2021] FamCA 25

House v The King (1936) 55 CLR 499; [1936] HCA 40

Keaty & Swann [2023] FedCFamC1F 178

Kingdom of Spain v Infrastructure Services Luxembourg Sàrl (2023) 275 CLR 292; [2023] HCA 11

McLaughlin & McLaughlin [2023] FedCFamC2F 1160

Project Blue Sky Inc v Australian Broadcasting Authority (1998) 194 CLR 355; [1998] HCA 28

Safi & Rafiq [2023] FedCFamC1F 692

TCL Air Conditioner (Zhongshan) Co Ltd v The Judges of the Federal Court of Australia (2013) 251 CLR 533; [2013] HCA 5

Westport Insurance Corporation v Gordian Runoff Ltd (2011) 244 CLR 239; [2011] HCA 37
Division: Division 1 First Instance
Number of paragraphs: 60
Date of hearing: 6 December 2023
Place: Sydney
Solicitor for the Applicant: Hall Partners
Counsel for the Respondent: Mr Gardiner
Solicitor for the Respondent: Bay Legal

ORDERS

SYC 8520 of 2022

FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 1)
BETWEEN:

MR NELLIE

Applicant
AND:

MS NELLIE

Respondent

ORDER MADE BY:

CAMPTON J

DATE OF ORDER:

8 DECEMBER 2023

THE COURT ORDERS THAT:

1.The relief sought by the Husband in paragraph 1 of his Response to an Application in a Proceeding filed 29 November 2023 objecting to the registration of the arbitral award of Mr B dated 8 November 2023 is dismissed.

2.Pursuant to s 13H of the Family Law Act 1975 (Cth) (“the Act”) the arbitral award be and is hereby registered.

3.The arbitral award that has by this order been registered has, pursuant to s 13H(2) of the Act, effect as…

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Nellie & Nellie [2023] FedCFamC1F 1050
Case
[2023] FedCFamC1F 1050
Decision Date

CaseChat Overview and Summary

In the Federal Circuit and Family Court of Australia, the husband, Mr Nellie, sought to object to the registration of an arbitral award made by Mr B, following a dispute between the parties over the division of their property. The court was required to determine whether the husband's objections were valid grounds for refusing to register the arbitral award under regulation 67Q of the Family Law Regulations 1984 (Cth). The court also had to interpret the phrase "any reason" within regulation 67Q(3) and assess whether a condition could be imposed upon registration of the award.

The court found that the husband had not provided any factual findings relevant to the arbitration process or its corruption that would justify objecting to the registration of the arbitral award. His objections were primarily based on the outcome of the arbitration, and he did not demonstrate any error of law or other valid reason as contemplated by the scheme of the Family Law Act 1975 (Cth) and the Family Law Regulations 1984 (Cth). The court concluded that the husband's desire for another hearing of the dispute was not a valid reason for objecting to the registration of the arbitral award. The court dismissed the husband's application objecting to the registration of the arbitral award and ordered that the award be forthwith registered. The court also listed the husband's application for review of the registered arbitral award for case management.

The court's decision was based on the principle that the determination of an objection to registration is not an administrative act, but rather a judicial function that involves a determination of questions of legal right or legal obligation. The court rejected the husband's argument that the term "any reason" in regulation 67Q(3) provided a complete discretion to the court to decide whether or not to register an arbitral award. The court held that the statutory interpretation of the regulation should be informed by its context and purpose, and that the husband's objections did not meet the threshold for refusing registration of the arbitral award.

The final orders of the court were that the husband's application objecting to the registration of the arbitral award was dismissed, the arbitral award was registered, and the costs of each party were reserved to the determination of the balance of the relief sought in the husband's application for review of the registered arbitral award. The court also listed the husband's application for review of the registered arbitral award for case management.

Orders

Orders of the court

SYC 8520 of 2022

FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 1)

BETWEEN:

MR NELLIE

Applicant

AND:

MS NELLIE

Respondent

ORDER MADE BY:

CAMPTON J

DATE OF ORDER:

8 DECEMBER 2023

THE COURT ORDERS THAT:

1. The relief sought by the Husband in paragraph 1 of his Response to an Application in a Proceeding filed 29 November 2023 objecting to the registration of the arbitral award of Mr B dated 8 November 2023 is dismissed.

2. Pursuant to s 13H of the Family Law Act 1975 (Cth) (“the Act”) the arbitral award be and is hereby registered.

3. The arbitral award that has by this order been registered has, pursuant to s 13H(2) of the Act, effect as if it is a decree made by this Court.

4. The costs of each of the husband and wife of and incidental to these orders are reserved to the determination of the balance of the relief sought in the Response to an Application in a Proceeding filed 29 November 2023.

5. The relief sought by the husband in paragraphs 2 – 8 of the Response to an Application in a Proceeding filed 29 November 2023 by way of review of the registered arbitral award of Mr B dated 8 November 2023 pursuant to s 13 J of the Act be listed for case management at 2.15 pm on 12 December 2023.

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

Note: This copy of the Court’s Reasons for judgment may be subject to review to remedy minor typographical or grammatical errors (r 10.14(b) Federal Circuit and Family Court of Australia (Family Law) Rules 2021 (Cth)), or to record a variation to the order pursuant to r 10.13 Federal Circuit and Family Court of Australia (Family Law) Rules 2021 (Cth).

Section 121 of the Family Law Act 1975 (Cth) makes it an offence, except in very limited circumstances, to publish proceedings that identify persons, associated persons, or witnesses involved in family law proceedings.

Background

Background to the litigation

For the reasons that follow, the husband’s application objecting to registration of the Arbitral Award will be refused and that relief dismissed. As agreed at the hearing on 6 December 2023, in the event, should the husband’s objection to registration be unsuccessful, then by consent, the Arbitral Award dated 8 November 2023 will be forthwith registered. The relief of the husband seeking review of the registered Arbitral Award pursuant to s 13J of the Act is listed for case management at 2.15 pm on 12 December 2023.BACKGROUND For the purposes of this determination, it was uncontroversial that:(a)The parties appointed Mr B to conduct the arbitration.(b)Mr B is an arbitrator as defined by s 10SM of the Act and reg 67B of the Family Law Regulations (1984) (Cth) (“the Regulations”); and(c)The parties agreed to attending arbitration pursuant to an undated arbitration agreement they entered into with the arbitrator (Exhibit 2) and pursuant to the order made on 7 August 2023. The parties unencumbered property at Suburb C (“the Suburb C property”) had been sold for $3,500,000. The sale is scheduled to complete in late 2023. The wife can remain in occupation thereafter but is required to vacate the property in early 2024. The arbitrator found the property of the parties to be $5,024,916 and their liabilities to be $68,518, finding the “net asset pool” to be $4,956,398. At arbitration, the husband sought that the property of the parties be divided equally. The wife sought that their property be divided 80 per cent in her favour and 20 per cent in favour of the husband. The Arbitral Award determined the contributions of the parties to favour the wife as to 78 per cent and the husband 22 per cent. The contribution finding was adjusted in favour of the wife by 2 per cent, concluding that the property of the parties ought to be adjusted 80 per cent to the wife and 20 per cent to the husband. The Arbitral Award broadly provides for the proceeds of sale of the Suburb C property to be applied to the selling fees, discharge any loans registered on the title of the property, reimburse the wife for the husband’s share of specified expenses, payment to the husband of $940,000 less an interim property sum of $200,000 already paid to him (net to be paid $740,000) and the balance to be paid to the wife. The husband is required to remove any caveat from the tile of the property within seven days. The Arbitral Award did not otherwise adjust the property of the parties. The wife retained a property at Suburb D (“the Suburb D apartment”). In his Response to an Application in a Proceeding (agreed to constitute an application in an arbitration) filed 29 November 2023 the husband sought:1.That the Court refuse registration of the Arbitration Award handed down by [Mr B] as Arbitrator on 8 November 2023, on the basis that in the circumstances of the factual and other findings contained within the Award, there is “other reason” having been shown by the Husband in respect of the Award as constitutes proper reasons to refuse registration of the Award for the purposes of Regulation 67Q to the Family Law Act 1975 (Cth) ‘the Act’;2.Alternatively, that the Court refuse registration of the Arbitration Award handed down by [Mr B] as Arbitrator on 8 November 2023, on the basis that the award is occasioned by error of law for the purposes of Section 13J(1) of the Act, as would discretely also occasion another “other reason” for the purposes of the Court exercising the discretion conferred by Regulation 67Q, to decline to register the Award;3.That the Court, in the event that it permits the registration of the Award, order non pro tune and for the purposes of Section 13J(1) of the Act, that the award is occasioned by error of law for the purposes of Section 13J(1) of the Act, and that in accordance with Section 13J(2)(b), the Court reverse the award;4. An Order for the giving or making or trial directions in these proceedings;5.Alternatively, an Order that the Court, permit registration of the Award (pursuant to Section 13J(2)(b)), or on such other basis as this Court thinks fit, but varies it to take account of the following matter, and which appear incorrect with the Award:(a)to reverse out of the calculations of the net Estate, [Motor Vehicle 1] and which was not an asset contained or referred to in the final balance sheet that was submitted at Arbitration;(b)to permit the Husband to keep the [Suburb D] property, the Husband having been the only party that have evidence at the Arbitration to the effect that he intended to live at the property, in the event that the Arbitrator awarded it to him(c) to add back the legal costs expended by the Wife up to the date of arbitration, and / or up to the date of Orders being made concerning the Hearing of this (application), to the final balance sheet adjustments, for the purposes of performing the ultimate calculation of the parties as to their respective entitlements to receive out of the matrimonial estate;(d) to add back the costs of the mediator as a debt of the Husband, (exclusively), to be charged against his ultimate entitlement to share out of the Estate and to reverse any effect upon the award, whereby it was proposed that the Wife would assume any form of responsibility for the making of this payment;(e) to adjust the ultimate proportion(s) by which the parties are entitled to receive interests out of the martial estate to reflect an entitlement of 50% to be payable to the Husband from the net estate, and 50% to be payable to the Wife, or for such other percentage of the marital estate as appears to be just and appropriate to the Court;6. An Order for interim property settlement to be paid to the Husband and to the Wife out of the net proceeds of sale of [E Street, Suburb C], NSW […], as to $740,000 to the Husband and as to $740,000 to the Wife; or for such other amount as in the view of the Court is just and appropriate to be ordered as an interim payment from which the parties ought share in the proceeds of the Estate;7. An order for the entry of an Order non pro tunc, granting a stay in respect of any order concerning the registration of the decision of the Award, provided that either party if they claim to be disaffected by any orders made in the reasons of the decision handed down in respect of this Application take steps to Appeal the decision of the Court within 21 days;8. Any such Orders as appear just and appropriate to the Court.

Evidence

Evidence Before The Court

Full text does not contain this section.

Decision

Reasons for decision

I am not persuaded that the husband has engaged with that as identified in Safi & Rafiq as to establishing a finding of fact relevant to the consensual arbitration process or its corruption, to formulate a foundation to object to the registration of the Arbitral Award, nor did he engage with the objects of Part IIIB of the Act. He made no complaints of the arbitration process except as to the result. He could not identify any factual finding on the evidence to establish his desired binary options to object to registration. His desire to have another hearing of the dispute is not a reason for the purposes of reg 67Q(3) to object to registration of the Arbitral Award.CONCLUSION For all the reasons above, the husband’s application objecting to the registration of the Arbitral Award of Mr B dated 8 November 2023 will be dismissed. The parties agreed that the costs of and incidental to that relief will be reserved to the determination of the balance of the husband’s Response to an Application in a Proceeding filed 29 November 2023.

Ratio Decidendi

Legal Principle Established

The husband’s submissions recorded as follows:15. It is in these circumstances, that the decision of Safi & Rafiq [2023] FedCFamC1F 692 (22 August 2023), (being a decision of Justice Campton), emerges as first instance authority to the effect that registration of an award follows more or less by administrative operation. (It is contended in this submission however, that the determination and points of principle taken in Safi are in fact, incorrect).(Emphasis added) The husband’s contention as to the identified part of the judgment in Safi & Rafiq is inaccurate. Whether the registration of an award is an administrative or judicial function was canvassed in detail with Safi & Rafiq at [32], [36], [37], [40] – [42], including what emerges from the High Court in TCL Air Conditioner (Zhongshan) Co Ltd v The Judges of the Federal Court of Australia (2013) 251 CLR 533 (“TCL Air Conditioner”) that registration is a determination in accordance with judicial process and necessarily involves a determination of questions of legal right or legal obligation at least as to the existence of, and parties to, an arbitral award. An order of the competent court determining the application on the merits then operates of its own force as a court order to create a new charter by reference to which those questions are in future to be decided as between the parties to the application. That is so for an order dismissing the application just as it is for one ordering that the arbitral award be enforced. This discerned the path of reasoning to the conclusion in [59] of Safi & Rafiq, which records:The final caveat I would raise in relation to the reasons in Entezam & Devi is that, for the reasons identified at [29]–[31] above, the determination of an objection to registration is not an administrative act.(Emphasis added) The husband said that upon registration of an award the Act has “profound effects on the legal status of the award” by the operation of ss 13J and 13K of the Act. The husband submitted as to the legislation and applicable principle underscoring the foundations of his objection to the registration of an arbitral awards that:(a)By way of statutory construction, the term “any reason” in reg 67Q(3) is:9. …the intentional nature of the language employed [such that] a complete discretion in terms of the decision to register an award or not; the judicial decision-making power of a court to decide whether or not the Court would recognize [sic] an award as being of the same effect, as if it were the product of a judgment of the Court.(Emphasis added)(b)“Any reason” is informed by what he described as the “significant constraints” imposed by ss 13J and 13K of the Act to questions of law, when cast against what he described as the more ample terms on which a litigant may appeal from a s 79 determination made by a Court through grounds “attacking the legal, factual and/or discretionary errors in that decision”. Putting it simply, the husband submits that the statutory interpretation of the regulation ought to employ the “meaning of the words actually used” as the “surest guide to legislative intention”. Contained within his submissions filed 2 December 2023 are plethora of authorities as to statutory interpretation. The husband did not start with ascertaining the text of the regulation considered in light of its context and purpose. If reading the text of the regulation in context permits of more than one potential meaning, the choice between those meanings may ultimately turn on an evaluation of the relative coherence of each with the scheme of the statute and its identified objects or policies (see Project Blue Sky Inc v Australian Broadcasting Authority (1998) 194 CLR 355 at 381). The husband did little to highlight the application of those principles identified to the fact of a discretion existing (as he asserts exists) not to register an arbitral award.