Safi & Rafiq [2023] – Court Upholds Arbitral Award Registration Amid Constitutional Challenge

Amended pursuant to r 10.14(b) of the Federal Circuit and Family Court of Australia (Family Law) Rules 2021 (Cth) on 5 September 2023

CAMPTON J:

INTRODUCTION

1. In proceedings between Ms Safi (“the wife”) and Mr Rafiq (“the husband”) pursuant to Pt VIII of the Family Law Act 1975 (Cth) (“the Act”), an order was made on 22 November 2022 in the following terms:
   2. By consent, the totality of this proceeding including all questions of costs is referred to arbitration pursuant to [s 13E of the Act].

(Emphasis added)

2. Subsequent to that order, the parties engaged in an arbitration hearing before an agreed accredited arbitrator, on 26 and 27 April 2023. They were each represented by counsel at the arbitration hearing. After the hearing each party filed written submissions, the last being received by the arbitrator on 19 June 2023. The arbitrator published his award on 21 June 2023 (“the award”).
3. The wife filed an Application to Register an Arbitration Award on 30 June 2023 (“the registration application”). It was agreed that she served the application on the husband on 3 July 2023. On 31 July 2023 the husband filed an Application in a Proceeding (which was also identified as a Response to an Application in an Arbitration) seeking, among other things, that the wife’s registration application be dismissed. The husband’s application was filed within the time prescribed by reg 67Q(3) of the Family Law Regulations 1984 (Cth) (“the Regulations”).
4. For the reasons that follow, the husbsand’s relief seeking that the registration application be dismissed will be refused, and hence paragraph 1 of his Application in a Proceeding filed 31 July 2023 will be dismissed. As 28 days have elapsed after service of the wife’s registration application, the award will be registered pursuant to reg 67Q(5) of the Regulations and s 13H of the Act, so that it has effect as if it were a decree of the Court.
5. During the course of the hearing, the husband advised that he is likely to amend the relief as currently articulated in paragraphs 2, 3 and 4 of his Application in a Proceeding filed 31 July 2023. Directions will be made to accommodate that course. Both parties sought costs of an incidental to this determination. Each required further time to marshal their evidence on that subject matter. Directions will be made facilitating that process and listing any costs applications for hearing.

BACKGROUND

6. The husband and wife married in 2004. They separated on 31 December 2020, but are not yet divorced. They had one child together, who was born 2006 and is now 17 years old.
7. On 26 January 2022 the wife filed an Initiating Application in what was then the Federal Circuit Court, seeking orders for property adjustment pursuant to Pt VIII of the Act. The husband filed a Response to that Initiating Application on 8 March 2022, seeking different orders for property adjustment.
8. It was uncontroversial for the purposes of this determination that the arbitrator was as defined by s 10M of the Act and reg 67B of the Regulations, that the parties agreed to him conducting the arbitration and that they entered a written agreement with him as to the arbitration. It was not suggested that the arbitration agreement failed to meet the matters identified in reg 67F of the Regulations. That written agreement was not tendered into evidence by either party.
9. The husband relied upon the following documents:
   • A Case Outline filed 10 August 2023 (Exhibit 2);
   • Application in a Proceeding filed 31 July 2023;
   • His affidavit filed 31 July 2023; and
   • The award (Exhibit 1).
10. The wife relied upon the following documents:
    • A Case Outline filed 9 August 2023 (Exhibit 3);
    • The Application to Register Arbitration Award filed 30 June 2023; and
    • An affidavit of service filed 8 August 2023.

THE ADJOURNMENT APPLICATION

11. The husband sought and was granted (absent objection from the wife) leave to make an oral application to adjourn the hearing of his application objecting to or resisting the registration of the award.
12. On 11 August 2023 the husband’s oral application for adjournment was dismissed. The reasons for that determination were reserved. These are those reasons.
13. On 9 August 2023, two days prior to the hearing, the husband sent to the Commonwealth Attorney General and the Attorney General for New South Wales what he contended to be a notice of a constitutional matter pursuant to s 78B of the Judiciary Act 1903 (Cth) (“the Judiciary Act”). The notices were Exhibit A and Exhibit B in the hearing of the adjournment application. The notices do not particularise the challenge arising under the Commonwealth constitution or involving its interpretation. They assert:

The parties agreed to an Arbitration of their dispute and in accordance with the procedures contained within the Family Law Act, an Arbitrator was appointed, he conducted an Arbitration, and an Award was published on 21 June 2023.

The wife has sought to have the decision of the Arbitrator registered as an Order of the Family Court. The husband opposes this application based, inter alia, on Harris v Caladine on the basis that it is impermissible for the Family Court to delegate the judicial powers conferred upon a Judge of that Court, to an Arbitrator.

Accordingly, the [husband] hereby gives you notice pursuant to s.78B of the Judiciary Act 1903 (Commonwealth) that the cause pending involves a matter involving the interpretation of the Constitution.

(Bold emphasis added)

14. The husband said that the preparation and service of that notice required the proceeding to be adjourned until it had been dealt with in the usual way (see s 78B(1) of the Judiciary Act). The wife opposed the adjournment.
15. During the hearing of the adjournment application, the husband shifted the foundation of his contended constitutional issue to focus on a challenge to s 13E and s 13H of the Act. He said that each section was “ultra vires the Constitution” and had “no constitutional validity” in that they were “outside the legislative power of the Commonwealth”.
16. Although it was not put by the husband in these exact terms, I understood the gravamen of the contended constitutional issue or matter involving the interpretation of the Constitution to be:

(a) That if an arbitrator issues an award finalising the property adjustment dispute between the parties to a marriage pursuant to s 79 of the Act, by operation of s 13H(2) of the Act upon registration, the award “becomes an order of the court”. For reasons I shall discuss, this is not a correct reading of the provision; and(b) Unless the registered award is capable of review in the form of a de novo or original hearing of the s 79 dispute, the authority conferred on the arbitrator to determine that dispute pursuant to Pt II, Div 4 and Pt IIIB, Div 4 of the Act (and specifically s 13E and s 13H) is in the nature of judicial power, and that is incompatible with ch III, s 71 or s 72 of the Constitution (the husband interchanged these sections during his submissions).

17. As a starting point, the question of adjournment of proceedings because of service of notice pursuant to s 78B is not axiomatic (see Australian Competition and Consumer Commission (ACCC) v CG Berbatis Holdings Pty Limited [1999] FCA 1151; (1999) 167 ALR 303 at [14]). The assertion of a constitutional question is not determinative of the character of the matter. Where an assertion is made it is nonetheless a matter for the Court to be satisfied that the challenge does not involve a matter arising under the Constitution or involving its interpretation (Xuarez & Vitela [2017] FamCAFC 139 at [11]).
18. For the reasons that follow, I was not satisfied that the husband’s notices contemplated a constitutional question which is a live issue in the proceeding because:

(a) First, the content of the husband’s ostensible constitutional issue morphed during the hearing such that his final contention was not substantially raised in his s 78B notices (see Re An Application by Public Service Association (NSW); Re Industrial Union of Employees (Commissioned Police Officers) Award [1947] HCA 31; (1947) 75 CLR 430). The current notices as served make no mention of either s 13E nor s 13H of the Act and are opaque as to the particulars of the husband’s challenges to that part of the legislation; and(b) Secondly, as will be explained, the constitutionality of consensual arbitration has not been controversial for almost 100 years: the High Court has confirmed that the Commonwealth can introduce legislation that allows the enforcement of arbitral awards that a person has obtained as a result of consensual private arbitration (see The Minister for Home and Territories v Teesdale Smith & Others (1924) 25 CLR 120). The husband’s s 78B notices did not identify or distinguish this and other longstanding High Court authority on this subject matter.

19. The construction of the husband’s complaint means that it is necessary to consider the constitutionality of both:

(a) The referral of proceedings to an arbitrator pursuant to s 13E of the Act; and(b) The registration and enforcement of an award pursuant to s 13H of the Act.

20. It may be thought that there is some superficiality in this distinction. However, dealing with each aspect in turn is appropriate given the manner in which the husband prosecuted his objection.

Section 13E of the Act – referral to arbitration

21. In support of his contention that the arbitration scheme under the Act contravened ch III of the Constitution, the husband placed significant reliance on the High Court’s determination in Harris and Caladine [1991] HCA 9; (1991) 172 CLR 84 (“Harris and Caladine”), and in particular the following two statements of the reasons of Mason CJ and Deane J (at 94–95):

The limitation is that the legislative power and the power of delegation cannot be exercised in a manner that is inconsistent with the continued existence of the Family Court as a federal court constituted under Ch. III. In other words, both the legislative power and the power of delegation must be exercised in conformity with the requirement that the Court’s federal jurisdiction, powers and functions are to be exercised by a court whose members are judges appointed pursuant to s. 72 of the Constitution.

…

The importance of insisting on the existence of review by a judge or an appeal to a judge is that this procedure guarantees that a litigant may have recourse to a hearing and a determination by a judge. In other words, a litigant can avail him or herself of the judicial independence which is the hallmark of the class of court presently under consideration.

22. The husband’s emphasis on these paragraphs reveals what I understood his submission recorded at [16(b)] above.
23. The legislative provisions of Pt II and Pt IIIB of the Act and the Regulations are so different from those involved in Harris v Caladine so as to preclude that decision from having any direct relevance to the subject matter of this determination. I shall attempt to engage with the gravamen of the husband’s submissions in any event. This involves first answering whether it is permissible for the Court to refer proceedings to be determined by an arbitrator, being a person who is not a judge. This in turn hinges on whether the arbitrator in determining a dispute is exercising judicial functions.
24. Section 13E provides:

(1) With the consent of all of the parties to the proceedings, a court exercising jurisdiction in:

(a) Part VIII proceedings; or(b) Part VIIIAB proceedings (other than proceedings relating to a Part VIIIAB financial agreement);

may make an order referring the proceedings, or any part of them, or any matter arising in them, to an arbitrator for arbitration.

(2) If the court makes an order under subsection (1), it may, if necessary, adjourn the proceedings and may make any additional orders as it thinks appropriate to facilitate the effective conduct of the arbitration.

25. The essential constitutional ingredient to family law arbitration is that the process is consensual. The High Court confirmed in TCL Air Conditioner (Zhongshan) Co Ltd v The Judges of the Federal Court of Australia (2013) 251 CLR 533 (“TLC Air Conditioner”) the constitutionality of the consensual arbitration process being based in the voluntary agreement of the parties to be bound by the determinations of the arbitrator (albeit the relevant law under consideration was the UNCITRAL Model Law on International Commercial Arbitration (“the Model Law”), having force under the International Arbitration Act 1974 (Cth)). In that matter, the High Court said the following:
    28. ……..Judicial power “is conferred and exercised by law and coercively”, “its decisions are made against the will of at least one side, and are enforced upon that side in invitum”, and it “is not invoked by mutual agreement, but exists to be resorted to by any party considering himself aggrieved”.
    29. Therein is the essential distinction between the judicial power of the Commonwealth and arbitral authority……..based on the voluntary agreement of the parties. The distinction has been articulated in the following terms:

“Where parties agree to submit their differences for decision by a third party, the decision maker does not exercise judicial power, but a power of private arbitration. Of its nature, judicial power is a power that is exercised independently of the consent of the person against whom the proceedings are brought and results in a judgment or order that is binding of its own force. In the case of private arbitration, however, the arbitrator’s powers depend on the agreement of the parties, usually embodied in a contract, and the arbitrator’s award is not binding of its own force. Rather, its effect, if any, depends on the law which operates with respect to it.”

(Footnotes omitted)

26. The High Court went on to say (at [31]) that the making of an arbitral award is not an exercise of the judicial power of the Commonwealth. The exercise of that authority by an arbitrator to determine the dispute submitted to arbitration for that reason lacks the essential foundation for the existence of judicial power. This authority, founded on agreement as distinct from coercion, is critical to its constitutionality. This is applicable to both s 10L and s 13E arbitrations because the existence and scope of the authority to make an arbitral award is founded on the consent of each party. As to s 10L, this would be represented in the arbitration agreement. As to s 13E, it would be in both the arbitration agreement and in a consent order referring the proceedings to arbitration.
27. A key difference would exist should arbitration be non-consensual. This was made clear by the High Court in Brandy v Human Rights & Equal Opportunity Commission [1995] HCA 10; (1995) 183 CLR 245 (“Brandy”). Brandy demonstrated that where parties are forced to use an alternate decision-making process, any enforcement provisions of the determination made in that process which failed to provide for judicial oversight will be unconstitutional.
28. Hence, s 13E of the Act does not confer judicial power on an arbitrator. The making of an order pursuant to s 13E of the Act reflects the parties’ consent to, and the Court’s endorsement of, arbitration as a process of determining their outstanding property dispute. The process is enlivened and regulated by the parties’ consent, and scaffolded by the Act, the Federal Circuit and Family Court of Australia (Family Law) Rules 2021 (Cth) (“the Rules”), the Regulations and the arbitration agreement entered by the parties. The husband’s argument is misconceived in that it equates the making of an order pursuant to s 79 of the Act with the Court’s recognition of this consensual process. An arbitral award concluding that process is not an order pursuant to s 79 of the Act.
29. For those reasons, I reject the husband’s assertion (insofar as it was maintained) that the referral of a dispute to arbitration delegates judicial powers in the sense discussed by the High Court in Harris v Caladine. Section 13E of the Act plainly does not delegate judicial powers to an arbitrator, and is therefore not in contravention of ch III of the Constitution. This applies equally to s 10L.

Section 13H of the Act – recognition and enforcement of an award

30. The second aspect of the legislative regime which the husband sought to impugn as contrary to the Constitution was the recognition and enforcement of arbitral awards by the Court. This commences with s 13H of the Act, which provides as follows:

(1) A party to an award made in section 13E arbitration or in relevant property or financial arbitration may register the award:

(a) in the case of section 13E arbitration—in the court that ordered the arbitration; or(b) otherwise—in a court that has jurisdiction under this Act.

(2) An award registered under subsection (1) has effect as if it were a decree made by that court.

(Emphasis added)

31. The procedures for applying for registration of an award pursuant to s 13H are set out in reg 67Q of the Regulations, which permits a party to object to registration.
32. In addition to the capacity to object to registration, Pt IIIB of the Act contains key provisions preserving the rights of parties to arbitration being:

(a) Section 13H(1), supplemented by reg 67Q of the Regulations which permits a party to object to registration, as the husband has done in this case;(b) Section 13J, which permits a party to review a registered award on questions of law. Section 13J relevantly provides:

(1) A party to a registered award made in section 13E arbitration or relevant property or financial arbitration may apply for review of the award, on questions of law, by:

(a) the Federal Circuit and Family Court of Australia (Division 2); or(b) a single judge of the Family Court of a State.

Note: There may be Rules of Court providing for when, and how, an application for review of the award can be made (see paragraph 123(1)(sf)).

(2) On a review of an award under this section, the judge or Federal Circuit and Family Court of Australia (Division 2) may:

(a) determine all questions of law arising in relation to the arbitration; and(b) make such decrees as the judge or Federal Circuit and Family Court of Australia (Division 2) thinks appropriate, including a decree affirming, reversing or varying the award.

(c) Section 13K, which permits a party to apply to set aside a registered award in certain circumstances. Section 13K relevantly provides:

(1) If an award made in section 13E arbitration or relevant property or financial arbitration, or an agreement made as a result of such arbitration, is registered in:

(a) the Federal Circuit and Family Court of Australia (Division 1); or(b) the Federal Circuit and Family Court of Australia (Division 2); or

(c) a Family Court of a State;

the court in which the award is registered may make a decree affirming, reversing or varying the award or agreement.

(2) The court may only make a decree under subsection (1) if the court is satisfied that:

(a) the award or agreement was obtained by fraud (including non‑disclosure of a material matter); or(b) the award or agreement is void, voidable or unenforceable; or

(c) in the circumstances that have arisen since the award or agreement was made it is impracticable for some or all of it to be carried out; or

(d) the arbitration was affected by bias, or there was a lack of procedural fairness in the way in which the arbitration process, as agreed between the parties and the arbitrator, was conducted.

33. The fundamental misconception in the construction of the husband’s constitutional challenge to s 13H of the Act is first identified in his s 78 notice (at [13]), where he asserts the wife sought to have “the decision of the Arbitrator registered as an Order” of the Court. This grounded his submission made during the hearing that s 13H(2) of the Act transformed the character of an arbitral award so that upon the registration it becomes an order of the Court (as recorded at [16(a)] above. That is neither the content nor the import of the section.
34. Upon being appraised of the plain language of the section, the husband strongly submitted there was “no difference” between an award “becoming” an order of the Court and award having effect on its registration “as if it were” a decree of the Court because the “effect is the same”. That submission is both nonsensical and contrary to long standing principles of statutory interpretation (see Project Blue Sky Inc v Australian Broadcasting Authority (1998) 194 CLR 355. The language of s 13H(2) of the Act is specific and careful. It is the product of a number of High Court determinations on the subject matter prior to the 2006 amendments to the Act which incorporated the section in its current terms.
35. For the reasons given above, an arbitral award is not an order made by the Court pursuant to s 79 within Pt VIII of that Act. It does not attain that character upon it being registered. Upon registration, pursuant to a wholly different section of the Act (Pt IIIB), it is recognised by the Court and enforceable. This submission of the husband is rejected.
36. The husband then submitted that the registration of an arbitral award was an administrative function with legal effect.
37. On this question, the High Court’s reasoning in TCL Air Conditioner is again instructive. As to the enforcement of an arbitral award in the context of international commercial arbitration, the High Court confirmed that:
    32. The enforcement of an arbitral award by a competent court, on application, under Art 35 of the Model Law is an exercise of the judicial power of the Commonwealth. That is because the determination of an application under Art 35 is always to occur in accordance with judicial process and necessarily involves a determination of questions of legal right or legal obligation at least as to the existence of, and parties to, an arbitral award. Where a request is made under Art 36, determination of an application under Art 35 must also involve a question of whether the party making the request has furnished proof of a ground for refusal. An order of the competent court determining the application on the merits then operates of its own force as a court order to create a new charter by reference to which those questions are in future to be decided as between the parties to the application. That is so for an order dismissing the application just as it is for one ordering that the arbitral award be enforced.

(Emphasis added)

38. This statement makes clear that, under the relevant legislation, an arbitral award is recognised as binding and is enforced if and to the extent the decision is made within the scope of authority conferred on the arbitral tribunal by the parties.
39. Accepting that there are some differences between the provisions of the Model Law under scrutiny in TCL Air Conditioner and framework in Pt II and Pt IIIB of the Act and the Regulations, it is significant that:

(a) Both permit the ‘recognition’ or ‘registration’ of an award as a separate process to enforcement. That is, a party may seek to register an award as a stand-alone prayer of relief.(b) Both direct that an award will be recognised or registered unless an objection is raised by the person resisting its recognition or registration.

40. Similar comparisons could be drawn between the framework in Pt II and Pt IIIB of the Act and the scheme contained in the Convention on the Settlement of Investment Disputes between States and Nationals of Other States (1965) (“the ICSID Convention”), discussed in the decision of the High Court earlier this year in Kingdom of Spain v Infrastructure Services Luxembourg S.à.r.l. [2023] HCA 11 (“Kingdom of Spain v ISL”). In that case, the High Court found that ‘recognition’ of an award under the ICSID Convention could be defined as:
    45. …the court’s “determination … that an international arbitral award is entitled to be treated as binding”, involving the court’s “acceptance of the award’s binding character and its preclusive effects”.

(Footnotes omitted)

41. Their Honour’s said this definition of ‘recognition’ accords with the reasons of French CJ and Gageler J in TCL Air Conditioner, as identified above. In the context of the ICSID Convention, the High Court made plain that the exercise of recognition was a judicial function. To my mind, the same can be said of registration for the purpose pursuant to s 13H of the Act and reg 67Q of the Regulations. It could not be maintained that that section or regulation impermissibly delegates judicial authority in a way inconsistent with the Constitution.
42. I am satisfied that the High Court’s analysis in TCL Air Conditioner and in Kingdom of Spain v ISL has relevance to the registration of awards pursuant to the Act and Regulations. That the Regulations provide the capacity to object to registration, and that such objection must be determined by the Court after giving the objecting party “reasonable opportunity to be heard in relation to the matter”, confirms that an order so determining the objection “operates of its own force as a court order to create a new charter by reference to which those questions are in future to be decided as between the parties to the application” (TCL Air Conditioner at [35]).
43. I was not satisfied that the notices of a constitutional matter in the terms as served by the husband on the Attorney Generals for the Commonwealth and NSW raised any fresh or live constitutional question. His application for adjournment served no utility. Hence it was refused.

THE HUSBAND’S OBJECTION TO REGISTRATION

The law

44. Although the Act creates a capacity for arbitral awards to be registered, they need not be. The Court does not register the award on its own motion. If a party elects to pursue registration pursuant to s 13H of the Act, they are obliged to follow the procedures set out in reg 67Q of the Regulations, which are as follows:

67Q Registration of award (Act s 13H)

(1) For section 13H of the Act, an application to register an award made in an arbitration must be in accordance with Form 8.(2) The applicant must serve a copy of the application on each other party to the award.

(3) 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.

…

(4) If nothing is brought to the court’s attention under subregulation (3), the court must register the award.(5) If a party brings a matter to the court’s attention under subregulation (3), the court must, after giving all parties a reasonable opportunity to be heard in relation to the matter, determine whether to register the award.

45. A simple reading of the regulation makes clear that:

(a) An application for registration of an arbitration award can be made by one party without the consent of the other; and(b) The other party may object to the registration of the award by bringing to the Court’s attention “any reason” why it should not be registered; and

(c) If they do not do so within 28 days of service of the application for registration, “the court must register the award”. This is not a discretionary determination, but a mandatory obligation imposed on the Court.

46. The architecture of this process of registration can be self-executing should the parties either explicitly or implicitly so elect. Each party has the opportunity to engage in the process of seeking or objecting to registration.
47. Neither the Act nor the Regulations prescribe any indicia that the Court must consider when determining an objection not register an award. The Act itself does not create a capacity to object to registration. It is silent on the Court’s role in the registration process.
48. Each party cited decisions of Judge Harman in Pavic & Pavic [2018] FCCA 3386 and Loomis & Pattison [2020] FCCA 345; (2020) 61 Fam LR 415, and Wilson J in Entezam & Devi [2021] FamCA 25; (2021) 62 FamLR 637 as to circumstances in which the Court ought to refuse the registration of an award.
49. To the extent that those determinations depart from one another, I respectfully agree with what Wilson J said in Entezam & Devi (save for three caveats as identified in bold, which I shall address), in the following extracts:
    17. Curiously, and this is the issue highlighted by this case, subordinate legislation provides for a dissatisfied party to object to 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 raises the breadth of the phrase “any reason” as appearing in Regulation 67Q(3).

…

23. The reference in Regulation 67Q(3) to “any reason” introduces a discretion entitling the court to decline to register the award. But that discretion is not unfettered or unguided. The discretion must be exercised judicially, consonant with authorities such as House v The King, Gronow v Gronow, Mallet v Mallet, Norbis v Norbis, Dougherty v Dougherty and Stanford v Stanford. It would not be competent for a judge to refuse to register the arbitral award on the basis that the arbitrator had green eyes, for example.
25. Had parliament intended to equate the expression “any reason” in Regulation 67Q(3) to the grounds stated in s 13K(2) it would have been simple enough for parliament to have so provided. But it did not. The essential question in this case is the meaning in Regulation 67Q of the phrase “any reason” where no criteria are specified.

…

27. …Having regard to the lengths to which Parliament has gone to limit the grounds for setting aside an award once registered, it would be antithetical to the legislative scheme in family law arbitrations to permit at registration phase “any reason” to have a literal meaning.

…

29. 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…

(Bold emphasis added)

50. To my mind, his Honour correctly identifies the absurdity of suggesting that a Court would refuse registration of an award for “any reason” in its literal sense, including “on the basis that the arbitrator had green eyes, for example” (at [23]). By way of analogy, it would be mischievous to suggest (the husband did in this case) that “any reason” would include that a party was dissatisfied with the overall determination of an arbitral award, or thought they could or should have achieved a greater adjusted share of the parties’ property.
51. I further agree with Wilson’s J’s observation that it would be nonsensical for “any reason” to be synonymous with or include the grounds for review of a registered award by way of s 13J on a question of law or the circumstances identified in s 13K grounding an order to set aside a registered award (as to the applicable standard of review for the purpose of s 13J and s 13K, see McLaughlin & McLaughlin (No 2) [2023] FedCFamC1F 516). Each of those sections provide distinct pathways for challenging an award and are themselves only available after registration. It would be contrary to long standing tenants of statutory construction to suggest that the legislature would, within the same Part of the Act, include different sections that echo the same objective. The duplication of the avenues to challenge an award identified in s 13J and s 13K as a ground for objection in reg 67Q would be irrational.
52. In my view Wilson J’s analysis that the circumstances in which registration might refused should be limited to those where an arbitral award is “void ab initio” is broadly consistent with the evaluation of the High Court in TCL Air Conditioner, however can be further refined. This is the first identified caveat to my concurrence with his Honour’s analysis.
53. Section 13A of the Act sets out the objects of Pt IIIB of the Act, relevantly:

(1)(c) to encourage people to use, in appropriate circumstances, arbitration to resolve matters in which a court order might otherwise be made, and to provide ways of facilitating that use; …

54. This objective is consonant with the long tradition of Australian superior courts endorsing arbitration as an alternate dispute resolution process to trial, and ensuring that arbitral awards, being the product of such process, are recognised as binding and enforceable. The High Court in Westport Insurance Corporation v Gordian Runoff Ltd [2011] HCA 37; (2011) 244 CLR 239 (“Westport Insurance”) observed that the scheme of the legislation applicable in that case was intended to hold parties to their agreement to arbitrate, and to the determination of the arbitration. It is my conclusion that the same can be said of the legislative scheme permitting and facilitating family law arbitrations.
55. In Kingdom of Spain the High Court upheld an agreement in an arbitration process that a foreign state’s waiver of immunity extended to both recognition and enforcement of an arbitral award. It again strongly affirmed the High Court’s engagement in upholding the fruits of a consensual arbitration process.
56. Taking into account the objects of Pt IIIB, together with the High Court’s determinations in Westport Insurance, TCL Air Conditioner and in Kingdom of Spain, and upon a reading of Pt II and Pt IIIB of the Act as a whole, it is my conclusion that an award should not be refused registration unless the party so objecting can establish that the award was made outside the scope of authority conferred on the arbitrator by the terms of the Act, Rules and regulations, in conjunction with the terms of the arbitration agreement made between the arbitrator and the parties. Putting it another way, the objecting party must identify and establish on the evidence a breach of or failure to comply with the legislative safeguards and/or the terms of the agreement between the parties and the arbitrator. As was identified by Wilson J, this might include where the decision maker was not an arbitrator within the definition of s 10M of the Act. It may also include where an arbitrator determines an issue arising outside of Pt VIII or Pt VIIIAB of the Act, or any matter arising from an exercise of power pursuant to those parts, for example, a parenting issue.
57. Arising from this analysis, to my mind, the refusal of an application to register an award pursuant to reg 67Q is not a discretionary determination. This is the second caveat to my agreement with the reasons of Wilson J as foreshadowed above. The dispute to registration presents a binary choice: either the objector demonstrates the findings of fact to establish a reason as contemplated by the scheme of the Act and the Regulations for the award not to be registered or they do not. There is no scope for discretion in this regard (this conclusion sits in contrast to Entezam & Devi at [8]).
58. Further, insofar as it was maintained by the husband, I do not accept that s 13H of the award “includes an obligation [on a judge] to satisfy him or herself that in all the circumstances it is just and equitable to make the Order” (husband’s Case Outline filed 10 August 2023). As I have explained, neither the arbitral award nor an order registering it are orders made pursuant to Pt VIII of the Act. Rather, the regime contemplated by s 13H of the Act and reg 67Q of the Regulations permits the Court to register an award without reference to what might be “just and equitable” within the meaning of s 79 of the Act: that phrase is not contained in Pt II or Pt IIIB of the Act or in the Regulations at all. Provided it sits within the scope of the Act, the Regulations and the arbitration agreement, an award is capable of being and must be registered by the Court, and is binding upon the parties.
59. The final caveat I would raise in relation to the reasons in Entezam & Devi is that, for the reasons identified at [29]–[31] above, the determination of an objection to registration is not an administrative act.

The husband’s grounds for objection

60. The husband identified a number of grounds upon which he sought to object to the award’s registration. Some of these can be dealt with briefly and rejected, given the above analysis:

(a) His primary ground that registration cannot occur without mandatory judicial oversight of the award by way of review as an original hearing by before a judge is rejected for the reasons given earlier; and(b) His alternate ground that a judge must be independently satisfied that the award determination achieves justice and equity as envisaged by s 79(2) of the Act is rejected for both:

(i) the reasons recorded earlier; and(ii) because the process of objection pursuant to the scheme of the Act and Regulations is neither an opportunity to “use arbitration as a process to obtain a quote” nor is it a back door process for relitigating the case.

(c) His dissatisfaction with the product of the determination is not a reason as contemplated by reg 67Q. On one view, this objection is petulant. In this matter, in addition to the matters recorded at [8] and [51] above, there was no contention that the arbitration process was conducted other than in accordance safeguarding scaffolds by way of the Act, the Regulations or the Rules nor the other than in accordance with the terms of the arbitration agreement. Those instruments define and regulate the terms of the process.

(d) The husband contends that some of the determinations in the award are impracticable or incapable of being put into effect. These contentions are twofold: firstly, that a real property in Country B taken into account by the arbitrator is “owned by the son of the parties”, who was not a party to the arbitration (the son is 17 years old), and secondly, that the wife is required to be physically present in Country B for the purposes of transferring another piece of real property to the husband pursuant to the terms of the award. The wife puts the factual matters underlying the integrity of each of these contentions into issue. For the purposes of this determination, as recorded earlier, these complaints are not contemplated by the legislation and specifically reg 67Q as a reason for objecting to registration. They may form, should the husband consider it prudent, the subject of challenges to the award, after its registration, pursuant to either s 13J or s 13K of the Act.

The husband’s purported revocation of his consent as a reason not to register the award

61. For the purposes of this matter, the clear and unequivocal express consent of each of the parties to the arbitration process is as contained in the s 13E order (at [1] above) and the arbitration agreement. That explicit consent was further confirmed by their engagement, on a fully informed basis whereby each were legally represented and had briefed counsel, in the arbitration hearing. It was maintained until after the award was published.
62. The purported withdrawal of consent did not form any part of the evidence of the husband in his affidavit filed 31 July 2023, being 28 days after the wife’s registration application was served upon him and 40 days after publication of the award. It was first foreshadowed in the husband’s Case Outline (Exhibit 2) filed on the day before the hearing, and was confirmed by his counsel towards the end of the hearing on 11 August 2023.
63. The husband made no complaint until well after the process of arbitration had concluded by way of publication of the award. As a matter of law, it is clear that a person can revoke or withdraw a consent. However, the question arises whether the husband can revoke or withdraw consent after the agreement to arbitrate has concluded upon the arbitrated publishing the award.
64. The husband submits that the withdrawal of his consent prior to the registration of the award is a reason contemplated by reg 67Q of the Regulations to ground a finding to uphold his objection not to register the award.
65. The husband bears the burden of proving all of the facts essential to his relief as claimed.
66. I find he gave no evidence as to any corruption or other irregularity in the making of the consent s 13E order. He entered the order implicitly informed as to its nature and effect. He did not apply at any time to discharge that order.
67. I further find that the husband entered the arbitration agreement on an informed basis and that he did not identify any deficiency in the terms of that agreement or that the arbitration was conducted other than in accordance with the Act, Rules, regulations and the agreement.
68. For those reasons, I find that the husband at all times participated on a fully informed basis in the arbitration process and hearing.
69. The husband made no submission identifying any evidence that either he or the wife did not expect to be bound the determination by way of the award in a manner consistent with the Act, Regulations and the arbitration agreement, or why that expectation was unreasonable.
70. The husband did not give evidence as to a capacity to unilaterally rescind or terminate the arbitration agreement, or that he had in fact done so.
71. The husband did not make any meaningful submission as to how a withdrawal of consent after the arbitration concluded and the award published would equate to a reason as contemplated by reg 67Q(3), or how it reconciled with the scheme of the Act and the reasoning of the High Court in Westport Insurance as recorded earlier. I find that an agreement to arbitrate ends when the parties have done all that the agreement required of them. This is the case here. The now purported withdrawal of the husband’s consent is futile and of no consequence. It not available as a reason as contemplated by reg 67Q(3) prevent the registration of the award.

CONCLUSION

72. As was frankly conceded by the husband in the closing of submissions, the reality of his objection is that he is dissatisfied with the product of the arbitrator’s determination. He makes no complaint as to the fact or conduct of the consensual arbitration process. He simply wants to have another hearing about the same subject matter determined by the arbitrator, in the hope that the outcome of that hearing will be more favourable to him. There are a number of policy considerations and objectives as to why an arbitration should not be considered an opportunity to obtain a quote.
73. I find that the husband has not established on the evidence a finding of fact to demonstrate a reason why the Court should not register the award. Paragraph 1 of his Application in a Proceeding filed 31 July 2023 will be refused and is dismissed.
74. Although not applicable in the circumstances of this case, a question arises as to whether the purported withdrawal or revocation of consent to arbitrate, without both good reason and without notice and where no challenge is made to the integrity of the original s 13E consent order or the arbitration agreement, is a course envisaged by the legislation. Dependant on the particular facts and circumstances of the case, the ability to withdraw consent during the arbitration hearing and hence terminate the process (perhaps because a party dislikes the flow of evidence when being cross-examined, or perceives the advocate for the other party to be superior to their own) would seem to circumvent the purpose of the legislation to hold parties to their agreement to arbitrate and to the determinations of the arbitrator. This may be a matter for consideration on another day, or require the attention of the Full Court or Parliament.
75. It is important for all arbitration stakeholders that a reality exists so that an arbitrator’s determination is binding and enforceable subject to the judicial safeguards as prescribed within the Act and regulations.