Arbitration in Family Law
Arbitration is a process in which parties to a financial dispute present arguments and evidence to an independent arbitrator, who makes a determination to resolve the dispute. Parties can commence arbitration privately, or the Court can make an order referring the matter for arbitration with the consent of all parties to the proceedings.
Why use family law arbitration?
Proceeding through arbitration can allow the parties to a dispute more control and clarity over the process. Arbitrations occur by agreement, with the following key benefits:
Speed: Unlike proceeding through Court processes, the majority of arbitrations are completed within 3 to 6 months for smaller matters or 6 to 9 months for larger matters.
Choice: You have the choice of arbitrator to hear and decide on your matter. This means if your matter has a complex issue you can select an arbitrator with a background in the area. An arbitrator is usually a legal practitioner who specialises in Family law and has been trained and accredited as an arbitrator.
Private: While any member of the public can watch court proceedings, arbitrations are private and confidential.
Binding: The arbitrator’s decision has the same effect as court orders, providing finality to your matter.
Despite the benefits, there are some limitations to arbitration. Namely, it must be by consent and it cannot bind third parties. Additionally, parenting issues cannot be arbitrated and decisions of the arbitrator are more difficult to appeal than court orders.
What can be arbitrated?
Only property and financial matters can be arbitrated, not parenting. This means issues relating to your property settlement, spousal maintenance issues, binding financial agreements, and superannuation interests.
You can also agree for part of your matter to be arbitrated, but not other parts. For example, if you cannot agree on the value of a house, you can have an arbitrator determine that issue for the Judge to use in the overall proceedings.
What is the process of arbitration?
In arbitration, you and your former spouse have a lot of control over what the process looks like for your matter.
A court-ordered family law arbitration may be commenced by filing an Application for Arbitration and a Financial Statement from each party. The benefits of this are allowing the parties limited access to the powers of the Court in relation to disclosure, subpoenas and case management.
A private arbitration does not need to involve the Court.
Whether Court ordered or private, all arbitrations require an arbitration agreement to be signed by the parties pursuant to section 27 of the Family Law Regulations.
Generally, arbitration will then either occur ‘on the papers’, meaning each party sends material to the arbitrator who makes the decision in their office, or each party present oral arguments and/or witnesses as if in trial before a court.
What happens once the arbitrator has made a decision?
Once the arbitrator has made a decision, called an ‘arbitral award’, it can be registered with the Federal Circuit and Family Court of Australia. Once the award has been registered, it is binding and enforceable on the parties to the arbitration in the same way as orders of the Court.
If the arbitration was court-ordered, the arbitrator must inform the Court that ordered the arbitration:
a. Within 7 days if an award is made.
b. Within 7 days if the arbitrator terminates the arbitration because the arbitrator considers a party does not have capacity to take part in the arbitration.
Our team at Dorter Family Lawyers & Mediators are experienced in advocating at arbitrations and find that clients sometimes save time and money when they go down this road instead of court. If the benefits of arbitration are appealing to you then please contact us or give us a call on 02 9929 8840 to discuss whether it is appropriate for your matter.
