Family Court Judge registers arbitration award made in favour of Opal Legal’s client

Judge rejects all 15 reasons advanced for non-registration.

In a land-mark decision handed down on 12 February 2021, Justice Joshua Wilson ordered that an arbitration award made on 28 October 2020 in favour of Opal Legal’s client – the applicant, be registered.

15 grounds had been advanced by the respondent for not registering the award.

This is the first time that a superior court has interpreted the meaning of the words “any reason” in Regulation 67Q of the Family Law Regulations 1984.

The award had found that a de facto relationship existed between the applicant and the respondent for a period of 24 years, contrary to the respondent’s claim that they only cohabited for two years.

Regulation 67Q states:

A party on whom an application is served may, within 28 days after service, bring to the attention of the court any reason why the award should not be registered.

His honour stated:

“…It seems to me that the “reason” to which Regulation 67Q(3) is directed is a reason connected to the validity of the process, the consensus of the parties, or the integrity of the arbitral process. The mere fact that one party may be dissatisfied with the upshot of the arbitration or with the orders pronounced as part of the arbitral award will not be a sufficient “reason” for the purposes of Regulation 67Q to refuse to register the award.”

It would be antithetical to the legislative scheme in family law arbitrations to permit at registration phase “any reason” to have a literal meaning, Justice Wilson stated.

“ ‘(A)ny reason’ in Regulation 67Q must be one by which a judge can conclude that the arbitral award is void an initio,” he opined.

As to the requisite standard of proof required for registration, his honour confirmed that the ordinary civil standard of the balance of probabilities applied.

Among the 15 grounds on which the respondent opposed registration were claims of bias, denial of procedural fairness, the arbitrator applying the wrong standard of proof, inconsistencies in the award and the reasoning of the arbitrator being wrong.

The judgement found that none of 15 grounds was capable of rendering the arbitration void ab initio.

Sections 13J and 13K  of the Family Law Act (which deal with the court’s power to review or set aside an award) were not enlivened “unless and until” the award is registered, the judge said.

Sections 13J and 13K have been considered by Judge Joe Harman of the Federal Circuit Court in Braddon v Braddon [2018] 59 Fam LR 234 and Pavic v Pavic [2018] FCCA 3386.

The applicant was represented by Mr Amendra Singh of counsel instructed by Opal Legal’s Namrata Singh.