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Family Law Arbitration

Written by Joanna Fan

Joanna Fan holds a Bachelor of Laws from the University of Sydney. She was admitted to practice in the Supreme Court of New South Wales in July 2017. Joanna has experience in family law, including property and parenting matters. She is experienced in drafting financial agreements, consent orders and negotiating settlements to achieve beneficial outcomes. Joanna is invested in finding practical solutions to resolve conflicts. She strives to understand what matters to clients and to provide empathetic advice. Joanna is passionate about helping clients through difficult periods like divorce and separation.

Family law matters can be time-consuming as well as expensive to litigate. The wait time for a court to determine a family law matter on a final basis can be over two years from when the Initiating Application is filed. In order to resolve matters efficiently, parties should consider alternative dispute resolution mechanisms such as family law mediation and family law arbitration.

The benefit of family law arbitration is that matters can be finalised within a few weeks or months and the costs of arbitration are typically less than what each party would pay if the matter progressed to a final hearing.

What is the difference between family law arbitration and mediation?

In both family law mediation and family law arbitration, there is an impartial third person assisting the parties to resolve a dispute. In mediation, a mediator assists the parties to communicate about a settlement for property or parenting matters by delivering messages between the parties and filtering negative communication such as criticism and blame so that parties can focus on reaching a resolution. The mediator can assist with clarifying the issues that are still outstanding between the parties and suggest potential solutions.

A Family Law arbitrator can determine a property dispute on a final basis. The arbitrator reviews evidence and submissions presented by both parties and provides the parties with a decision in the form of an arbitral award. Sometimes even when parties have attended mediation, they are unable to reach a resolution. In that situation, an arbitrator can make the decision for the parties, allowing the parties to obtain an impartial decision sooner than that may be available from a Court.

What qualifications do arbitrators have?

Family Law Arbitrators are legal practitioners who have at least five years’ experience with at least 25% of their work undertaken in family law. Arbitrators have completed specialist arbitration training. Some arbitrators are former judges of the Family Court or Federal Circuit Court. They have extensive experience deciding family law matters.

What kind of matters can be arbitrated?

Property matters can be arbitrated but it is not possible to arbitrate parenting matters. However, if your family law situation includes both parenting and property issues, it can beneficial to resolve the property matters through family law arbitration.

Property matters include spousal maintenance, superannuation and financial agreements.

What is the process for arbitration?

In order to organise arbitration, the parties must consent to arbitration. Some arbitrators may hold a Directions Hearing where they will direct the parties to file documents in preparation for a hearing.

Normally, simple property matters can be heard over a one-day hearing. The parties present arguments and evidence to an arbitrator.

The scope and the processes involved in arbitration can be determined by the parties. For example, the parties may request for arbitration to be on one discrete aspect of the matter. The remainder of the issues can be resolved by the parties themselves by consent or by a Court. If the parties do not wish to present any oral submissions, then the decision can be made based on written submissions only. This saves the parties from having to appear before the arbitrator or calling witnesses for oral evidence.

At the conclusion of family law arbitration, the parties are provided with an arbitral award.  The award sets out the arbitrator’s reasons for making the award and the finds of fact in the matter. The award can then be registered with the court. In accordance with section 13H of the Family Law Act, the award once registered takes effect as if it were a decree made by the court.

What if I am not satisfied with the arbitral award?

If both parties are unsatisfied with the award, then they may agree not to register it. In that case, the award does not take effect.

If one party has registered the award with the Court, but the other party is unhappy with the award, the other party has 28 days to apply to the Court and provide reason why the agreement should not be registered. Reasons can include that the parties did not consent to arbitration or that the arbitrator was not properly qualified.

If a party seeks for an award to be reversed or varied, he or she will generally be required to prove there has been an error of law. The error may be that the award was:

  1. Obtained by fraud;
  2. Void, voidable or unenforceable;
  3. Affected by bias or lack of procedural fairness;
  4. Obtained though arbitration, but circumstances have now arisen making the award impracticable.

It is important to ensure procedural fairness and absence of bias in arbitrations. Arbitrators are trained to maintain the formality of proceedings and to avoid private meetings with parties or their solicitors. In most cases arbitration produces a binding decision in a quick and efficient manner, allowing the parties to move on with their lives after separation.

If you require legal advice or representation in a family law matter or in any other legal matter, please contact Go To Court Lawyers. 

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