Family Court of Australia Supports Alternative Dispute Resolution – Introduction of Arbitrations and National Arbitration List

04/08/2020

Alternative methods of resolving Family Law disputes such as Mediation and Collaborative Practice are discussed on the Watson & Watson website.  Arbitration is another alternative to pursuing a case in the Family Court from the beginning to the end.  Judicial resolution of cases takes significant time, incurs significant costs and there are long delays for all parties involved in cases being heard before the Family Courts.  These factors have resulted in people looking towards alternative dispute resolution methods. 

Arbitration – Court Move to Encourage Resolution by Arbitration  

The Family Court is now actively supporting Arbitration.  This aim has resulted in the promotion of Arbitration for property matters.  The Family Court of Australia and the Federal Court have established a new specialist list in each Court known as the “National Arbitration List”.  Specific Judges have been appointed to co-ordinate the Arbitration List in each State and Territory.   

What is Arbitration?

Arbitration is a process whereby parties to a dispute present arguments and evidence to an independent Arbitrator who then makes a decision (on award) to resolve the dispute.  The Arbitrator is not a Judge of the Court but the Arbitrator hears and decides the case.  Following Arbitration, the Arbitrator delivers their decision within 28 days.  Arbitration is different to Mediation:

• The parties do not have control over the outcome. 
• The Arbitrators decides the case and subject to limited rights to challenge the Arbitrators decision, the case is concluded. 
• The Award is registered in the Court and can be enforced as if it were a Judgment of the Family Court. 

Court Order Arbitration and Arbitration by Agreement

The Family Law Act provides for two types of Arbitration each of which requires the consent of the parties.

1. Where parties have already commenced proceedings in the Court, the Court can pursuant to Section 13E of the Family Law Act refer parties to Arbitration but only with the consent of the parties.  This applies to cases for property division and spousal maintenance. 
2. Without commencement of any proceedings, separating spouses can agree to arbitrate in respect of property division and maintenance as well as Financial Agreements. 

What are the Benefits of Arbitration?

• Arbitration is less costly than litigation in the Court. 
• An Application can be finalised including the making of an Order in less than
  3 months – current Court delays could mean a case would not be heard for
  2 to 3 years. 
• The process can be structured to the needs of an individual case and this can assist in speed of determination. 
• The Arbitration is private and will not be heard in open Court. 
• The parties can give consideration to how to structure the Arbitration with a view to achieving fairness, speed and outcome. 
• Capacity to select individual Arbitration. 

What are the Disadvantages of Arbitration?

One of the important aspects of the Arbitration is what occurs when one party is dissatisfied with the outcome of the Arbitration.  If the matter had been determined by a Judge of the Family Court or Federal Circuit Court then there would be a right to appeal in respect of a final decision.

Section 13J of the Family Law Act allows a party to seek a review of an arbitral award on questions of law only.  Section 13K provides that a dissatisfied party may seek a review of an arbitral award if the Court is satisfied that:

1. The award was obtained by fraud (including non-disclosure of material matter).
2. The award is voidable or unenforceable.
3. Circumstances that have arisen since the award or agreement made it impractical for some or all of the agreement to be carried out.
4. The arbitral award was affected by bias or lack of procedural fairness in the conduct of the Arbitration process.

If you are proposing to resolve your financial/property settlement or spousal maintenance matter by participation in Alternative Dispute Resolution, extreme care needs to be given before you agree to an Arbitration having regard to the lack of review if you are dissatisfied with the outcome.  Equally important is the selection of an appropriate Arbitrator which requires careful consideration.

At Watson & Watson Lawyers our highly experienced Family Law Solicitors can also assist you if you are in proceedings and one party proposes Alternative Dispute Resolution.  We can advise you of the benefits and detriments which will enable you to make a decision which is only one of the tools available.  We consider all avenues and provide our advice pertinent to your particular circumstances. Please contact Richard Watson Senior Family Lawyer or Shereen Da Gloria his Personal Assistant to discuss your concerns and seek timely advice.

This is only a preliminary view and is not to be taken as legal advice without first contacting Watson & Watson Solicitors on 9221 6011.