Kan v Aamer 2020 FamCA 1014

In the case of Kan v Aamer [2020] FamCA 1014, Wilson J made an order nunc pro tunc under section 13E referring the matter to arbitration.  He then registered the arbitral award that had resulted from an arbitration and determined that the award would have the effect as if it were a decree made by the court.

The applicant had attempted to register an award made in her favour. The respondent opposed the registration alleging that the award is:

• affected by fraud;
• void, voidable or unenforceable;
• the product of procedural unfairness and bias; and
• is otherwise affected by error of law.

After service of the award and the accompanying Form 8, which has to be given pursuant to regulation 67Q of the Family Law Regulations, the respondent had 28 days in which to “bring to the attention of the court any reason why the award should not be registered“.  That is as provided by regulation 67Q(3).

A Federal Circuit Court judge transferred this proceeding to the Family Court.

Directions were made for the respondent to file material.  The respondent was given further time to file material, which he did. He then filed an affidavit and exhibits “spanning 126 pages”.

The court then considered regulation 67Q of the Family Law Regulations. The parties have to apply to register the award.  An award doesn’t have any legal effect until it is registered. Once registered, a party can apply to vary, affirm or reverse the award.

That sequence is important, and it is also linked to timing.

A party opposing registration has 28 days to bring matters to the attention of the court and that party must bring to the attention of the court “any reason” why the award should not be registered.

Section 13K sets out the grounds upon which a court is entitled to affirm, vary or reverse an award.

When His Honour Judge Middleton ordered the parties “to engage in the arbitration process in accordance with the arbitrator’s practice”, no order was made under section 13E of the Family Law Act.

This arbitration was described as a section 13E arbitration as defined in section 10L(2)(a) of the Family Law Act and was not a relevant property or financial arbitration as defined by section 10L(2)(d).

Because of the operation of section 13E(1), the section 13E order was required.

The absence of the order doesn’t, in the opinion of the court, invalidate the arbitration and an order was made nunc pro tunc under section 13E referring the matter to arbitration.

The court then considered the respondent’s reasons as set out in his affidavit. He needed to tell the court any reason why the award should not be registered as required by regulation 67Q(3).  The allegations he relied on were not relevant to the application to register the award. Those matters are relevant to the capacity and consideration of the court to vary, affirm or reverse the award.

The court then considered each of the matters.

The court determined to register the award. Then, the respondent had the opportunity to seek orders under section 13K.