Family & Relationship Law 01 November 2022

I want someone to determine my family law property matter, but I don’t want to go to Court: Is Arbitration the answer?

Parties to family law matters often desire an outcome without delay.  The longer it takes parties to resolve matters, the likely the costs spent on legal fees will increase significantly and often the depth or the scope of the dispute will expand.  Mediation has proven to be a successful and well-utilised model to resolve disputes, which if successful, enables parties to save themselves significant legal fees should the matter have proceeded to trial.  Mediation also enables the parties can move on in an efficient and cost-effective way.  Arbitration is another form of dispute resolution allowing parties to achieve a cost-effective and efficient outcome.

What is Arbitration?

Arbitration is a process by which an Arbitrator determines a dispute between parties.  In family law matters, an Arbitrator is limited to determining only financial and property proceedings.

Parties can participate in an Arbitration both prior to engaging in Court proceedings, or while there are Court proceedings on foot.  The process is voluntary, which means that the Court cannot force parties to engage in an Arbitration.

How does the Arbitration work?

In determining the award (outcome), the Arbitrator will hear evidence and submissions from the parties.  The unique feature of Arbitration, as opposed to standard litigation, is that there is flexibility as to the approach and procedure adopted by the parties and the Arbitrator.  Although the Arbitrator must determine the dispute in accordance with the Family Law Act, the Arbitrator can take steps to resolve the matter using a less formal approach to suit the parties, such as relaxing the rules of evidence (if agreed to by the parties).

In a private Arbitration (where court proceedings are not on foot) the parties are able to self-determine the scope of the Arbitration.  For example, the Arbitrator may be required to determine all matters outstanding or determine only a discrete issue such as whether funds advanced by one of the parties’ parents was a loan rather than a gift.

If the Arbitration has been ordered by the Court with consent of the parties, the Court will define the matters in dispute requiring determination and may make orders appropriate to facilitate the effective conduct of the Arbitration.  It is possible that the referral to Arbitration is the totality of the proceedings, including a matter as to costs.

Is the Arbitrator’s determination binding?

The Arbitrator will deliver an award on the outcome of the matter.

The Arbitral award should include a concise statement that sets out the Arbitrator’s reasons for making the award, and the Arbitrator’s findings of facts in the matter by reference to the evidence on which the findings are based.

The parties may apply for registration of the Arbitral award and can enforce the award.  The award is registered as if it were a decree of the Federal Circuit & Family Court of Australia.

A party may object to the registration of the Arbitral award.  Under s 67Q(3) of the Family Law Regulations 1984, ‘A party on whom an application is served may, within 28 days after service, bring to the attention of the court any reason why the award should not be registered’.  The grounds of objection are not extensive.

A party may apply for a review on a question of law, meaning a party can apply for a review where is a asserted the Arbitrator has misapplied the law.

Further, a party can apply to set aside the Arbitral award where the Court is satisfied that:

  1. The award or agreement was obtained by fraud (including non-disclosure of a material matter); or
  2. The award or agreement is void, voidable or unenforceable; or
  3. In the circumstances that have arisen since the award or agreement was made it is impracticable for some or all of it to be carried out; or
  4. The arbitration was affected by bias, or there was a lack of procedural fairness in the way in which the arbitration process, as agreed between the parties and the arbitrator, was conducted.

So why Arbitration?

Quite often, parties who are entrenched in litigation may wait at least two years for determination of their matter by a Judge.  Arbitration has the capability of allowing parties to obtain an outcome in timelier and cost-effective way, noting that the Arbitral award is final (save for the circumstances referred to above).  Parties can convene the Arbitration at a time and place or in a manner that is convenient to them, which in an increasingly digital age may involve the use of an online platform such as Microsoft Teams.

How can we help?

If you have queries about finalising a family law property matter, please contact Coulter Legal for a 30-minute no cost consultation to provide you with tailored advice in relation to you and your individual circumstances.  Our lawyers are available for in-person, telephone and Skype/ Zoom appointments.  Our Family & Relationship Law team is here to help you navigate difficult issues during these difficult and unprecedented times.

Bonnie Phillips.
Bonnie Phillips Principal Lawyer Head of Family & Relationship Law View profile
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