Owen & Murray

[2022] FedCFamC1F 967

Federal Circuit and Family Court of Australia

(DIVISION 1)

Owen & Murray [2022] FedCFamC1F 967

File number:	BRC 13770 of 2021
Judgment of:	WILSON J
Date of judgment:	9 December 2022
Catchwords:	FAMILY LAW – NATIONAL ARBITRATION LIST – unorthodox passage to arbitration – s 10L arbitration – arbitration validly entered into – award was validly and regularly made – registration of award ordered.
Legislation:	Family Law Act 1975 (Cth) s 10L, 13E and 90UM
Cases cited:	Kan v Aamer (2020) 63 Fam LR 198
Division:	Division 1 First Instance
Number of paragraphs:	20
Date of last submissions:	6 December 2022
Date of hearing:	11 November 2022
Place:	Sydney
Solicitor for the Applicant:	Jeff Horsey
Counsel for the Respondent:	M. Drysdale KC
Solicitor for the Respondent:	McInnes Wilson Lawyers

ORDERS

BRC 13770 2021

FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 1)

BETWEEN:

MS OWEN

Applicant

AND:

MR MURRAY

Respondent

order made by:	WILSON J
DATE OF ORDER:	9 DECEMBER 2022

THE COURT ORDERS THAT:

1.Pursuant to s 13H of the Family Law Act the arbitral award be and is hereby registered.

2.The arbitral award that has by this order 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 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.

IT IS NOTED that publication of this judgment by this Court under a pseudonym Owen & Murray has been approved pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth).

REASONS FOR JUDGMENT

WILSON J

1. The parties jointly seek orders for the registration of the arbitrator’s award. The parties jointly contended that the arbitration was a s 10L arbitration rather than a s 13E arbitration.

2. Having read and considered the written submissions of the parties, in my view it is appropriate to make an order registering the arbitrator’s award.

3. Having regard to the unusual nature of this proceeding, it seemed to me to be desirable to record the history of the dispute and how the case came before me in the absence of the more orthodox s 13E order for referral to arbitration of the whole of the property proceeding.

4. On 15 October 2021 the de facto wife commenced litigation in this court in Division 2 pursuant to which she sought orders under s 90UM of the Family Law Act for the setting aside of a cohabitation agreement made between her and the de facto husband on 4 February 2008.  That agreement was expressed to have been entered into pursuant to s 266 of the Real Property Act 1974 (Qld).  The de facto wife contended that it was a de facto financial agreement for the purposes of Part VIIIAB of the Family Law Act. In his response to the initiating application filed 23 December 2021 the de facto husband sought a declaration pursuant to s 90G(1B) of the Family Law Act to the effect that the recognised cohabitation agreement was binding on the de facto husband and the de facto wife.

5. The de facto wife relied on a statement of claim filed 13 December 2021 in which she pleaded, among other things, that the recognised cohabitation agreement was –

   (a)entered into in circumstances of unconscionable conduct;

   (b)procured by undue influence;

   (c)the product of fraud;

   (d)the subject of a unilateral mistake; and

   (e)entered into as a result of fraud.

6. In his defence filed 24 January 2021 the de facto husband denied the equitable contentions advanced by the de facto wife, he took pleading points about the articulation of her claims and he otherwise contended that the recognised cohabitation agreement was valid and subsisting.  The defence did not illuminate in any particular way the factual basis on which the de facto husband opposed the de facto wife’s application for orders setting aside the recognised cohabitation agreement.

7. The proceeding came before a judicial registrar on 8 February 2022 who ordered that all applications were to be considered by a judge of Division 2 of this court on a date to be fixed.  On 3 May 2022 her Honour Judge Spelleken ordered this proceeding to be called over on 7 October 2022 for the fixing of the proceeding for trial.  On 27 September 2022 her Honour transferred this proceeding to the National Arbitration List under my control.  The orders entered that day recorded that on 7 September 2022 the parties attended (past tense) an arbitration before Mr B on 7 September 2022.

8. No order was made under s 13E referring the proceeding to arbitration.

9. Before me the parties contented that the arbitration before Mr B was a s 10L arbitration rather than a s 13E arbitration.

10. The evidence concerning the character of the arbitration was scant indeed, especially whether it was a s 10L arbitration. Self-evidently it was not a s 13E arbitration as no order under s 13E was made by any judicial officer.

11. According to the submissions of the de facto husband dated 25 October 2022, in which the wife agreed in her submissions also dated 25 October 2022, on 20 June 2022 the parties jointly approached Mr B sending him correspondence concerning their proposal to appoint him as arbitrator of their dispute in relation to the recognised cohabitation agreement.  On 5 July 2022 a brief was delivered to the arbitrator by the solicitor for the de facto wife.  On 27 July 2022 the arbitrator conducted a preliminary conference (called by the de facto husband “an arbitration directions hearing”).  On 1 August 2022 the arbitrator provided a version of the proposed arbitration agreement for execution by the parties, which (according to the de facto husband’s submissions in which the wife agreed) both parties duly executed and returned to the arbitrator.  The arbitration was conducted on one day on 7 September 2022.

12. The arbitral award was duly made.  It was dated 26 October 2022.

13. Pursuant to the orders of her Honour Judge Spelleken made 3 May 2022, the proceeding was to be heard by her Honour on 7 October 2022. On 23 September 2022 the parties wrote to her Honour requesting the call-over of the case be vacated and that the proceeding be transferred to the National Arbitration List. On 27 September 2022 her Honour Judge Spelleken made consent orders transferring this proceeding to the National Arbitration List. On 11 October 2022 this proceeding was mentioned before me consequent upon the transfer of the proceeding to the National Arbitration List. I enquired how the case came to be arbitrated given that no order under s 13E had been made by any judicial officer. So as to avoid the possibility of oversight, I ordered the parties to provide written submissions explaining how this proceeding was commenced as an arbitration in the absence of an order under s 13E of the Family Law Act and what status the award had in the absence of an order under s 13E. I adjourned the proceeding for further hearing on 26 October 2022.

14. On 25 October 2022 the de facto husband and the de facto wife filed submissions, as has already been mentioned.  At my request, on 6 December 2022 the parties provided me with the award of the arbitrator.  The award itself was not previously supplied to the court nor was it exhibited to any affidavit.   It was not attached to an application to register an arbitral award in accordance with Regulation 67Q or in accordance with Form 8 to Schedule 1 of the Family Law Regulations.  Be that as it may, the opening words on the face page of the award appear as follows –

    ARBITRATION AWARD

    Delivered at Brisbane on Wednesday, 26 October 2022

    In the matter of the Arbitration, pursuant to section 10L(2)(b) of the Family Law Act 1975 (Cth) (the Act), of Part VIII proceedings under the Act referred by the following parties to Arbitration.

15. It went without saying that the parties and the arbitrator proceeded on the basis that the arbitration was what s 10L(2)(b) of the Family Law Act calls “a relevant property or financial arbitration”. An arbitration of that nature is distinct from an arbitration ordered by the court in pursuance of s 13E of the Family Law Act, a s 13E arbitration (as s 10L(2)(a) calls it) being more numeric in frequency and popularity in the National Arbitration List[1] than are relevant property or financial arbitrations under s 10L(2)(b) of the Family Law Act.

    [1] The Honourable Justice Wilson, National Arbitration List – A Practical Look At the Last Two Years –

16. It may seem curious that the arbitration in this proceeding was not constituted under s 13E. After all, the proceeding was commenced in October 2021 and pleadings had been exchanged during December 2021 and January 2022. By February 2022 the case had been earmarked to a Division 2 judge and by May 2022 the case was ordered to be called over on 7 October 2022. Had a s 13E order been made by consent on 3 May 2022, the case would most likely have been arbitrated by September 2022 and the award published soon thereafter.

17. As it happened, the parties explored the avenue of a s 10L(2)(b) arbitration in mid-June 2022. They were well advised to do that. The mere fact that their case was by that date pending before a Division 2 judge did not prevent the parties from pursuing their remedies under s 10L(2)(b). In this instance, the parties’ arbitration was conducted on 7 September 2022 and the award was made[2] by the arbitrator on 26 October 2022, which, if I may respectfully say, was with consummate efficiency and expedition.  The arbitrator dismissed the de facto wife’s application to set aside the cohabitation agreement.

    [2] An arbitral award is “published” in international commercial arbitrations and “handed down” in domestic commercial arbitrations yet an award is “made” under Regulation 67P of the Family Law Regulations.

18. A s 10L(2)(b) arbitration may take the form of an arbitration involving a proceeding under part VIIIAB of the Family Law Act. In this proceeding, the de facto wife sought orders under s 90UM of the Family Law Act. Section 90UM is in Part VIIIAB of the Family Law Act so it is within the purview of s 10L(2)(b) of the Family Law Act. It was entirely regular for the arbitrator in this proceeding to proceed under s 10L(2)(b) in the hearing and determination of the de facto wife’s application under s 90UM. Counsel for the de facto husband correctly relied on my decision in Kan v Aamer[3] in that regard.

    [3] (2020) 63 Fam LR 198.

19. In those circumstances, I am persuaded that the arbitration in this case was validly entered into and that the award was validly and regularly made.

20. Both parties have sought registration of the award. An order should be made under s 13H registering the award made 26 October 2022 which has effect as if a decree of this court.

I certify that the preceding twenty (20) numbered paragraphs are a true copy of the Reasons for Judgment of the Honourable Justices Wilson.

Associate:

Dated:       9 December 2022