Braddon v Braddon 2018 FCCA 1845

The Decision of Braddon v Braddon [2018] FCCA 1845, a Decision of Judge Harman in 2018, deals with an Arbitral Award.  It was an award dealing with family property interests.

This is a case where the parties had sought by consent that the matter be referred to arbitration.

Orders were made referring the matter to arbitration pursuant to section 13E of the Family Law Act.

By Order made in Chambers on 1 March 2018, the Arbitral Award was registered.

In March 2018, the husband filed an application seeking orders for the Arbitral Award to be set aside and for the court to consider and determine the outstanding property matters in dispute between the parties in accordance with section 79(4).

The husband claimed the arbitrator had not determined the dispute in accordance with the law, had given inadequate reasons, and that the Arbitral Award was “unreasonable and plainly unjust”.

His Honour affirmed the Arbitral Award.

The court said:

“The husband’s submissions in his application to set aside the Arbitral Award were founded on the assertion that the arbitrator had made an error of law”.

The court distilled this into a complaint that the Arbitral Award should not be registered or if registered, should be reviewed and registration reversed on the basis of an error or errors of law.

The court said that there had been no submission as to what error of law was allegedly made by the arbitrator.

The husband, on the issue of whether the arbitrator had provided adequate reasons, relied on authorities the court considered could be distinguished from the present case.

This case reminds us that there is a two-step process involved: first, there is registration of the award which is dealt with by Regulation 67Q. Once an award has been registered, a court has the powers set out in section 13J and 13K of the Family Law Act.

An error of law is provided by section 13J(1) of the Family Law Act.

The court considered this particular award.

The applicant had provided written submissions rather than an affidavit. An affidavit is not required.

His Honour suggested that:

“It could be validly argued that this object, focussed upon resolution of matters without the need for the Court’s intervention, supports a narrower interpretation of the basis of review on “questions of law”.

The Arbitral Award can be reviewed on “questions of law“.”

His Honour considered other sources of information and made reference to a paper by Justice Keane of the High Court called “˜Judicial support for arbitration in Australia’.

Complaints were:

  1. Was the dispute determined in accordance with law? There was no submission made;
  2. Were the reasons inadequate?

At paragraph 35, His Honour made reference as follows:

“It would appear settled law that the appropriate standard by which I might approach the adequacy of the Arbitrator’s reasons is the “Bremer test”, namely:

  • All that is necessary is that the arbitrators should set out what, on their view of the evidence, did or did not happen and should explain succinctly why, in the light of what happened, they have reached their decision and what that decision is.”

At paragraph 113:

“I am satisfied that the reasons given adequately and tolerably explain the basis for the Arbitral Award made and the justice and equity of the Arbitral Award.”

The court’s consideration is, is the Arbitral Award unreasonable or plainly unjust?

This complaint can only be made by reference to the evidence.

His Honour said:

“It is inappropriate for the review to be approached from the perspective of whether the reviewer would have come to the same decision.”

The court affirmed the Arbitral Award dated 22 January 2018 and registered by Order 1 March 2018.