Tips For First Appearances

FCC considers when a party can

It is often raised as a point of discussion "What are the grounds for an objection to an award pursuant to reg 67Q of the Family Law Regulations." Last year I posted an article about this topic particularly the lack of prescription of the grounds for objecting to the registration of an award.

In my article, Objection to a Family Law Financial Award, I suggested that despite the regulations being silent, recourse could be had to the jurisprudence developed in other jurisdictions, particular under the State and Commonwealth Commercial Arbitration Acts which do provide guidance as to the grounds when an objection may be raised. 

In Price & Price [2018] FCCA 3386Judge Harman considered his decision in Braddon & Braddon [2018] FCCA 1845where he considered the various circumstances when an arbitral award could be invalidated. In specifically turning to the question of when a party might object to an award being registered, His Honour noted the absence of definition in the Family Law Regulationsand adopted jurisprudence developed in commercial arbitrations; 

 

20.       In relation to matters that might be a basis for objection to registration of an arbitral award, I am satisfied that assistance and guidance is given by a consideration of the provisions of the Commercial Arbitration Act 2010 (NSW), which I shall hereinafter refer to as “the Model Law”, as the Act is largely replicated in the various State arbitration Acts which are each the subject of settled jurisprudence.

21.       I am satisfied that reference within the Model Law to “recognition and enforcement” of awards is directly referable to registration of an award under the Family Law Act 1975. They are one and the same. In that regard, I am also conscious of that opined by Professor Parkinson in a paper delivered to the Family Law Pathways group, Katoomba, June 2016. Therein Professor Parkinson observes at page 9:

“…it is important to note that an arbitral award only takes effect once registered”

And hence the arbitral award is enforceable only upon registration.

22.       In the absence of authority as to the proper basis for objection to registration of an arbitral award, I am satisfied that I should consider the address of that issue by reference to the Model Law. That will provide the guidance of Superior Courts and lead to consistency between jurisdictions.

23.       Section 36 of the Model Law provides for “recognition and enforcement” or arbitral awards rather than registration. The Model Law provides for enforcement of an arbitral award by recognition (and enforcement). I am satisfied that “recognition and enforcement” of an arbitral award, as described in the Model Law, is referrable to and one and the same as registration of an arbitral award under the Family Law Act 1975.

 

…/…..

 

30.       Section 36 of the Model Law provides that a Court may refuse to recognise or enforce an arbitral award on a number of grounds including:

a)         Incapacity of a party;

b)         That the arbitration agreement is not valid under the law to which the parties are subjected – in this case, the Family Law Act 1975;

c)         That a party against whom the award is invoked was not given proper notice of the appointment of the arbitrator;

d)         The award deals with a dispute not contemplated or falling within the terms of submission to arbitration;

e)         The composition of the arbitral tribunal was not in accordance with the agreement of the parties; 

f)          The award has not yet become binding on the parties under the law under which the arbitration was conducted.

31.       The grounds to oppose recognition and enforcement of an arbitral award under the Model Law, whilst not specifically enumerated in regulation 67Q of the Family Law Regulations 1984, are a good starting point for understanding what might be appropriate bases to object to registration of an arbitral award. They largely reflect the points above.

 

Read the full decision here. 

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