Entezam & Devi 2021 FamCA 25

Family law practitioners could, I suggest, spend some time reading Regulations 67A through to 67T of the Family Law Regulations 1984.

Sections 10L, 10M, 10N and 10P of the Family Law Act are also sections that could usefully become familiar to us.

Sections 13E, 13F, 13G, 13H, 13J and 13K are also of interest to practitioners willing to engage with arbitration.

Entezam & Devi [2021] FamCA 25 is a case that deals with a dispute about whether an arbitral award should be registered or not.

The eventual outcome in that case was that:

  1. pursuant to reg 67Q(5) of the Family Law Regulations and s 13H of the Family Law Act the arbitral award of Heinrich Moser made on 28 October 2020 be and is hereby registered; and
  2. the arbitral award that has by paragraph 1 of these orders 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.

These orders represent a fairly standard outcome at the end of an arbitration.

What went wrong?

The arbitration in this case was limited to two issues, namely:

  1. whether a de facto relationship existed between the parties; and
  2. if there was one, the duration of the relationship including its commencement and conclusion dates.

In the writer’s view, the use of arbitration for issues such as this is an enormous opportunity for parties and practitioners to advance matters.

A decision was made, an award was written, and the applicant filed an application to register the arbitral award. The respondent filed an application for orders setting aside the arbitral award.

At paragraph 8 the court said:

Before any question of setting aside the arbitral award fell for determination, it was first necessary to embark upon a consideration of whether to make an order pursuant to Regulation 67Q(5) for the registration of the arbitral award. That was for the simple reason that s 13K(1) of the Family Law Act provides that the court may affirm, reverse or vary the arbitral award if that award is registered. An anterior factual scenario presented itself here because the award had not yet been registered so it was not amenable to the making of a decree affirming, reversing or varying the award.”

The respondent opposed the registration of the award on the same grounds on which she relied to set aside the award “namely arbitral bias and lack of procedural fairness”.

Paragraph 16 of the decision notes that the Family Law Act contains no criteria for registration.

Of interest is the fact that subordinate legislation provides for a dissatisfied party to object to the registration of the award. “The act of registration is an administrative act. A challenge to registration may be brought by a party to the award raising “any reason” why the award should not be registered.”

This case really turned on the breadth of that phrase “any reason” as found in Regulation 67Q(3).

The court said:

“The respondent did not put into evidence on this application a transcript or sound recording of the conduct of the arbitration. It was not possible for me to verify the truth or otherwise of many of the assertions made by the respondent (and denied by the applicant) about the arbitrator’s conduct of the arbitration. It fell to the respondent to make good her contentions about the want of procedural fairness and bias. She had to prove the existence of “any reason” of which Regulation 67Q spoke.”

The court determined that the mere fact that one party was dissatisfied was not a sufficient reason.

Paragraph 23 reminds us that the discretion to decline to register an award for any reason is not unfettered or unguided.

The case law to date suggests that the reason to which the phrase is directed is the same as those set out in sections 13J and 13K of the Family Law Act.  This case explored an unexplored area.

This case is seeking to consider the meaning in Regulation 67Q of the phrase “any reason”.

At paragraph 29, the court said:

“In my judgment, having regard to the overall scheme of family law arbitrations, which critically limit the circumstances in which awards can be challenged, “any reason” in Regulation 67Q must be one by which a judge can conclude that the arbitral award is void ab initio.”

Important basic elements are consent, the arbitrator’s qualifications, and going beyond the initial reference to arbitration thereby invalidating the arbitral process.

The ordinary civil standard of proof, the balance of probabilities, was accepted as the appropriate standard of proof “to assess whether the reason advanced for refusing to register an award had been made out”.

All of the reasons for not registering the award failed.