Safi & Rafiq

The case involves the husband objecting to the registration of an arbitral award made by an arbitrator appointed under the Family Law Act 1975 (Cth). The husband and wife had agreed to arbitrate their property adjustment dispute and had appointed an arbitrator. The wife applied to register the arbitral award as an order of the court, which the husband opposed. The husband's objection was dismissed and the award was registered. The husband also sought an adjournment of the hearing of his objection, which was refused. The husband had notified the Commonwealth Attorney General and the Attorney General for New South Wales of a constitutional matter, but the Court found that the husband had not identified a live constitutional issue in the proceedings.

The legal issues before the Court were whether the referral of the dispute to arbitration and the registration of the arbitral award were constitutional, and whether the Court should grant an adjournment of the hearing of the husband's objection. The Court found that the referral to arbitration and the registration of the award were constitutional, as the process was consensual and the arbitrator was not exercising judicial power. The Court also found that the husband had not identified a live constitutional issue in the proceedings, and that the husband's objection was simply a dissatisfaction with the outcome of the arbitration. The Court found that the husband's purported withdrawal of consent to arbitrate was futile and of no consequence, as the agreement to arbitrate ended when the parties had done all that the agreement required of them.

The Court's reasoning was based on the distinction between judicial power and arbitral authority, which depends on the voluntary agreement of the parties. The Court found that the arbitral award was binding and enforceable subject to the judicial safeguards as prescribed within the Act and regulations. The Court also found that the husband's objection was not a reason as contemplated by reg 67Q(3) to prevent the registration of the award. The Court refused the adjournment of the hearing of the husband's objection, as the husband had not identified a live constitutional issue in the proceedings.

The final orders of the Court were that the husband's objection to the registration of the arbitral award be dismissed, the arbitral award be registered, and directions be made for any costs applications and case management. The Court also made directions for any proposed amendments to the husband's relief sought and for the listing of any applications for costs and case management.