An increasing form of dispute resolution in family law financial matters is arbitration. Arbitration is defined as a confidential ‘process (other than the judicial process) in which parties to a dispute present arguments and evidence to an arbitrator, who makes a determination to resolve the dispute’.
After proceedings are commenced in the Federal Circuit and Family Court of Australia, parties are referred to a privately funded dispute resolution process. The Court can refer parties to arbitration in relation to property and spousal maintenance disputes, but only with the consent of both parties. If proceedings have not commenced, separating spouses can still agree to arbitrate their financial settlement.
If your matter relates to property and parenting, you will be referred to an alternative dispute resolution process such as mediation which aims to facilitate an agreement between parties. However, there is no decision-maker in the mediation process. In contrast, arbitration is a determinative mode of dispute resolution where the arbitrator, jointly chosen by the parties, is required to determine the issues in dispute and impose a decision.
The arbitration process is confidential and occurs in private. Together the parties and the arbitrator decide upon how the arbitration will be conducted – for example as a full hearing with cross-examination of the parties.
Registering an Arbitral Award
You may register an arbitral award pursuant to section 13H of the Family Law Act 1975 (Cth). Once registered, the award takes effect as an order of the Court. The award sets out reasons and the arbitrator’s findings of fact in the matter. An application to register the award can be filed in the Court to give the award force and effect as if it were an order of the Court.
If you do not agree to the arbitral award being registered, you have 28 days to ‘bring to the attention of the court any reason why the award should not be registered’ as provided for under regulation 67Q(3) of the Family Law Regulations 1984. This would occur through the filing of an affidavit.
Objecting to the Registration of an Arbitral Award
If you do not bring anything to the court’s attention under regulation 67Q(3), the Court must register the award. Conversely, if you bring reason to the court’s attention, the court must:
- give all parties a reasonable opportunity to be heard in relation to the matter; and
- then determine whether to register the award.
Once an award is registered, a party may seek to challenge the award and seek that the award be reviewed, varied or set aside.
Challenging an Arbitral Award
A party to an arbitral award may apply under section 13J of the Family Law Act for a review of the award on one or more questions of law. The award must first be registered before any application for review may be brought. If the Court is satisfied that there has been an error of law, it has the power under section 13J of the Family Law Act to affirm, vary or reverse the arbitral award.
Alternatively, under section 13K of the Family Law Act, a party to an award may seek that the Court make a decree affirming, reversing or varying the arbitral award on one of the following grounds:-.
- the award or agreement was obtained by fraud (including non-disclosure of a material matter);
- the award or agreement is void, voidable or unenforceable;
- in the circumstances that have arisen since the award was made it is impractical for some or all of it to be carried out; or
- the arbitration was affected by bias or there was a lack of procedural fairness in the way the arbitration process, as agreed between the parties and the arbitrator, was conducted.
Arbitration is an effective means for resolving your dispute in a way that minimises costs and delays which parties often face through the court process. If you are affected by a property settlement dispute and require further information about ways of resolving your dispute and the arbitration process Dorter Family Lawyers & Mediators are experienced family lawyers and can provide specialist advice to you.