Two Years of Arbitration, No Registrable Award: Without a Compliant Arbitration Agreement or Notice, It Isn't Family Law Arbitration

In Merckx & Merckx [2026] FedCFamC1F 693, Jarrett J refused a husband's application to register a "final award" made in March 2025 after three rounds of arbitration of the parties' property dispute ([2]–[3], [55]). When the Court asked for the parties' arbitration agreement, the answer, "remarkably", was that there wasn't one ([39]). The arbitrator also never gave the written notice the Regulations require when there is no agreement ([44]). Because neither of the two prescribed paths was followed, the process was not "family law arbitration" under the Family Law Act 1975 (Cth), and the document could not be registered under s 13H ([45]–[47]). The earlier "interim awards" were not true awards either ([52]). The property case now goes back to the Court for directions ([57]). All paragraph references below are to the judgment.

Why it matters: Arbitration is meant to be a faster, private way to finish a property case. Here the parties went through it three times, with counsel, and ended up with nothing they could enforce. Consent orders referring the case to arbitration, a shared intention to arbitrate and full participation were not enough ([40], [46]). The paperwork is not a formality. It is what turns a private process into family law arbitration that the Court will register and enforce ([45]).

🧩 Facts and Issues

The marriage and the court case

The parties married in 2003 and separated in 2022. Their two children are adults ([1], [5]).
The husband (the applicant) started parenting and property proceedings in May 2023. Interim orders in August 2023 dealt with outgoings, interim spousal maintenance, his occupation of the former home and a $100,000 interim property payment to the wife (the respondent) ([6]).

The arbitrations

In October 2023 the Court referred the property proceedings to arbitration under s 13E ([7]).
Before the hearing, the parties signed heads of agreement: a 52.5/47.5 division of the net pool in the wife's favour, sale of the home, business and commercial property, continued spousal maintenance of $1,950 a week, a $50,000 lump sum, and access to business records ([8]).
The arbitrator issued an "interim award" on 22 December 2023 dealing with the sales, preservation of proceeds, occupation and document access. It was registered in March 2024 ([9]–[10]).
In June 2024 consent orders converted the referral into a broader s 10L(2)(b) arbitration and stayed the court proceedings ([12]–[13]). A further "Interim Award/Directions" document in July 2024 set issues (addbacks, tax debts and the form of the final award), a timetable and a single tax expert, and was registered too ([14]–[16]).
At the "final arbitration" in October 2024, the arbitrator told the parties he was not bound to follow their heads of agreement ([17]).
The March 2025 "final award" let the husband keep his business and the commercial property, ordered the home sold, moved the overall division to 55/45 in the wife's favour, split superannuation, and purported to discharge all earlier interim awards and all earlier court orders except spousal maintenance ([18]).

The applications

The husband applied to register the final award. The wife opposed registration, arguing the process was not validly constituted as family law arbitration, and also raised excess of power, departure from the agreed structure, errors, procedural unfairness and delay ([3], [37]).
The husband said the parties' dealings, the consent orders and their participation showed a binding agreement to arbitrate, and that complaints about the merits belonged under ss 13J and 13K after registration ([38]). He also asked the Court to vary the superannuation provision ([54]).

Issues

Was the "final award" an award made in family law arbitration, so that it could be registered under s 13H?
Could the parties' conduct and consent orders make up for the missing arbitration agreement and the missing notice?
Were the "interim awards" true arbitral awards, and could an arbitrator discharge court orders?

⚖️ Applicable Law – Legislation, Regulations, Rules

Family Law Act 1975 (Cth) s 10L — defines arbitration and "family law arbitration", whether or not the Court ordered it under s 13E ([36]).
Family Law Act 1975 (Cth) s 13E — the Court may refer property proceedings to arbitration, but only with each party's consent ([7], [24]–[25]).
Family Law Act 1975 (Cth) s 13H — an award made in family law arbitration may be registered, and then has effect as if it were a decree of the Court ([10], [34]–[35]).
Family Law Act 1975 (Cth) ss 13J and 13K — review of awards on questions of law and setting aside registered awards ([38], [53]–[54]).
Family Law Regulations 1984 (Cth) reg 67F — an arbitration agreement must be in writing, signed by each party, and set out prescribed information, including how the arbitration will be conducted and when it may be suspended or terminated ([28]).
Family Law Regulations 1984 (Cth) reg 67G — if there is no compliant agreement, the arbitrator must give each party written notice of the prescribed information at least 28 days before the arbitration ([29]).
Family Law Regulations 2024 (Cth) regs 37 and 145 — reg 37 governs registration of awards from 1 April 2025, and the transitional provisions in reg 145 kept regs 67F and 67G alive for this arbitration ([30], [32]–[33]).

📌 Precedents Relied On

TCL Air Conditioner (Zhongshan) Co Ltd v Judges of the Federal Court of Australia (2013) 251 CLR 533 — the foundation of arbitration is the parties' agreement, not the authority of the State ([20]–[21], [41]).
Construction, Forestry, Mining and Energy Union v Australian Industrial Relations Commission (2001) 203 CLR 645 — a private arbitrator exercises a power of private arbitration, not judicial power ([21]).
Daryn & Ingun [2025] FedCFamC1F 906 and Safi & Rafiq [2023] FedCFamC1F 692 — a family law arbitrator's authority comes from the parties' agreement and consent; the process is "scaffolded by the Act, the Rules, the Regulations and the arbitration agreement" ([22]–[23], [26]).
Olsen & Rich [2022] FedCFamC1F 324 — without the reg 67F formalities, an arbitration agreement does not come into existence, and a bare s 13E consent order cannot compel an arbitration ([25], [41]).
CBI Constructors Pty Ltd v Chevron Australia Pty Ltd (2024) 283 CLR 172 — an interim award is ordinarily final and binding on the issues it decides ([50]).
Mordue v Palmer (1870) LR 6 Ch App 22, Wrightson v Bywater (1838) 3 M & W 199 and Fidelitas Shipping Co Ltd v V/O Exportchleb [1966] 1 QB 630 — finality is an essential quality of an award; an arbitrator cannot make a provisional "award" open to later reconsideration unless the parties give that power ([50]–[51]).
Vida & Vida (2023) 67 Fam LR 285 — does not suggest an arbitrator can set aside a court order ([49]).

🧠 Analysis

Issue

Can an award be registered under s 13H when the parties never made a written arbitration agreement complying with reg 67F, and the arbitrator never gave the reg 67G notice, even though the Court referred the case to arbitration by consent and both parties took part?

Rule

An arbitrator's authority rests on the parties' agreement. Consent to a referral order is evidence of an agreement to arbitrate, but it is not the agreement itself ([20]–[24], [41]).
Once parties agree to arbitrate, reg 67F(2) is engaged. If there is no compliant agreement, reg 67G requires the arbitrator to give a written notice with the prescribed information. One or the other must be satisfied ([42]–[45]).
Section 13H and reg 37 apply only to awards made in family law arbitration. Filing a registration form cannot turn a document made outside family law arbitration into a registrable award ([35]).

Application

There was no arbitration agreement at all

The material did not show an arbitration agreement, so the Court asked for it. The parties confirmed there was none ([39]). The Court accepted that the arbitrator's directions, costs correspondence, court orders and the parties' conduct identified the arbitrator, the hearing arrangements, the timetable, the expected length and the costs split, and showed a common intention to arbitrate ([40]).

Intention to arbitrate is not the same as a compliant agreement

The husband argued that reg 67F only applies if parties choose to sign such an agreement. The Court rejected that, although it said the point was not necessary to decide: without an agreement to arbitrate there can be no arbitration, so once the parties agreed to arbitrate, reg 67F(2) was engaged ([41]–[42]). Nor could the agreement be pieced together from the orders and letters. None of them dealt with how the arbitration would be conducted (reg 67F(3)(f)) or when it could be suspended or terminated (reg 67F(3)(g)) ([42]).

The fallback notice was never given either

The Court noted that reg 67G, which applies when there is no compliant agreement, suggests that a defective agreement is not fatal on its own. But reg 67G is mandatory ([43]). The arbitrator gave no notice containing the prescribed information, an explanation of reg 67H, or a statement that each party could attend and be heard. The husband accepted that no single notice was given and that not all the information had been conveyed, including when the arbitration could be suspended or terminated ([44]).

"No mere irregularity"

Regulations 67F and 67G are alternatives, and neither was satisfied. The Court said this was "no mere irregularity": without a compliant agreement, the reg 67G notice was how the statutory process was engaged ([45]). The consent orders of June 2024 and the arbitrator's directions showed agreement to a further arbitration, but participation in "what they thought was an arbitral process" could not cure the non-compliance or transform it into family law arbitration ([46]). So the final award was not capable of registration, and the duty to register in reg 37(4) was never triggered ([47]).

The "interim awards" were not awards

The Court went further. The December 2023 and July 2024 "interim awards" disposed of no issue finally; they were provisional, so they lacked the essential quality of finality and were not registrable awards ([52]). The Court explained that a true interim award is final on what it decides, so a "final award" that sets aside an earlier interim award is ordinarily beyond power, unless the parties' agreement or a statute gives that power ([50]–[51]). The Court also doubted that, without the parties' agreement, an arbitrator's s 80 powers extend to making interim awards like these ([50]).

An arbitrator cannot discharge court orders

The final award purported to discharge all earlier court orders. The Court did not consider that an arbitrator has power to set aside, discharge or vary a decree of the Court ([49]).

Merits complaints are for review, not for refusing registration

The wife's complaints of unfairness, error, miscalculation and departure from the heads of agreement would, if there were a valid award, belong under the review and setting-aside provisions in ss 13J and 13K. They do not give a general discretion to refuse registration under reg 37 ([53]). The husband's request to vary the superannuation provision failed too, because there was no registrable award to vary ([54]).

A question left open

The Court raised whether reg 37, which says the Court must register a compliant award, is consistent with s 13H, which says the Court may. It found it unnecessary to decide ([34]).

Conclusion

The application to register the final award was dismissed. The wife's application succeeded only to the extent it sought refusal of registration, and the husband's request to vary the superannuation provision was dismissed ([55], Orders 1–3). Costs were reserved, and the parties must propose directions for the property proceedings, which return to Court on 3 December 2026 ([56]–[57], Orders 4–6).

This judgment does not decide the property case or whether the 55/45 outcome was right. It does not deal with the wife's application to enforce spousal maintenance ([3]). It does not decide whether reg 37 is valid ([34]).

🧠 Take-Home Lesson

Get the arbitration agreement in writing and signed. A s 13E consent order is not an arbitration agreement ([24], [41]).
Check every item in reg 67F(3). Here the gaps were how the arbitration would run and when it could be suspended or terminated ([42]).
No agreement means the arbitrator must give the reg 67G notice. One of the two paths must be followed ([44]–[45]).
Taking part does not fix it. Participation and a shared intention to arbitrate cannot cure non-compliance ([46]).
Be careful with "interim awards". A provisional award that decides nothing finally is not an award and cannot be registered ([51]–[52]).
An arbitrator cannot discharge the Court's orders. Build that into the plan for any final award ([49]).
Unhappy with an award? Use ss 13J and 13K. Merits complaints do not stop registration of a valid award ([53]).
Self-represented litigants and support workers: if you are asked to arbitrate a property case, ask to see the signed arbitration agreement before the hearing. If there isn't one, ask whether the arbitrator has given the written notice the Regulations require ([39], [44]).

"A consent order to arbitrate is not an agreement to arbitrate. Without the paperwork, there is no award to register."

"Three arbitrations, both sides represented, and nothing the Court could enforce. The process is only as strong as its foundation."

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