…pursuant to a registered arbitral award
In Lasso & Malaka [2022] FedCFamC1A 130 (23 August 2022), the Full Court (Austin, Tree & Williams JJ) allowed a husband’s appeal from orders of Wilson J in respect of an arbitral award that was registered pursuant to s13H of the Family Law Act 1975 (Cth) (the Act).
The award provided for the husband to transfer his interest in the home to the wife; and within 90 days the wife refinance a mortgage on an investment property. If the wife was unable to refinance within 90 days, the husband had the opportunity to pay the wife $325,000 and retain the property.
The wife obtained finance approval and provided notice to her lawyer, but not the husband. On the expiration of the 90-day period, the husband paid $325,000 to the wife and said the property vested in him.
The wife filed an application for enforcement.
At first instance, the court found that the “award should be given effect but in accordance with new dates” ([23]), ordering the wife to return the $325,000 to the husband; and that the husband transfer the property.
The Full Court said (from [30]):
“Counsel for the [wife] submitted, subject to … exceptions, once perfected … an order finalising a proceeding is beyond recall (Gamser v Nominal Defendant [1977] HCA 7 … There is no reason why the same conclusion should not apply to an arbitral award …
[31] Exceptions to the principle … include matters where the orders sought to be varied are consequential or machinery orders … (…)
[40] … The [first instance] … orders … substantially varied the terms of the decree … (…)
[42] It was incumbent on the … judge to raise with the parties the orders he proposed to make … The failure … to do so is a denial of procedural fairness. (…)
[60] Not only did the … judge fail to identify the source of power he … exercised to make the … orders, the orders could not have been made pursuant to s13K or s105 of the Act, nor … the general power … ”
Craig Nicol and Keleigh Robinson are co-editors of The Family Law Book. Both are accredited specialists in family law (Queensland and Victoria, respectively). The Family Law Book is a one-volume loose-leaf and online family law service (thefamilylawbook.com.au).
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