What is Family Law Arbitration and how does it work?

The Family Court of Australia and Federal Circuit Court of Australia have recently introduced the National Arbitration List, where family law matters in the Courts will be sent to an external Arbitrator to be finalised. This is good news for parties in the Court system, as preparation for and attendance at an arbitration can often be quicker and less expensive than a contested final hearing at Court.

But what is arbitration?

Section 10L of the Family Law Act 1975 defines arbitration as ‘a process in which parties to a dispute present arguments and evidence to an Arbitrator, who makes a determination to resolve the dispute’. This means your matter will be determined by a suitably qualified Arbitrator, not a Judge. Under the Family Law Regulations 1984, Arbitrators are legal practitioners who specialise in Family Law, have completed arbitration training, and are registered with the Law Council of Australia. Arbitrations can be entered into privately or in compliance with a Court Order.

Under section 10L(2) of the Family Law Act, parenting matters cannot be arbitrated – only financial matters are eligible for arbitration.

Will I be forced to attend arbitration if I don’t want to?

Arbitration requires parties to ‘opt-in’; parties must consent to attending arbitration before the Court will order it to occur. Section 13E of the Family Law Act confirms this, and states that the Court can only make an order referring proceedings to an Arbitrator ‘with the consent of all parties.’ As such, if you do not want to attend an arbitration, then you do not have to, and the Judge will continue to make decisions in your matter.

What happens at arbitration?

Once all parties agree to attend arbitration and/or the Court has ordered that the parties are to attend arbitration, the parties select their Arbitrator and schedule an arbitration date. Then parties must then prepare relevant documents (such as an Application in an Arbitration, subpoena in an Arbitration, Response to Application in an Arbitration, etc.) and provide them to the Court/Arbitrator.

Arbitration runs a lot like a Court mention, only with less formality. On the arbitration date, the parties will attend arbitration (either in person or over the phone) with their legal representatives. The parties’ representatives will each address the arbitrator and present their arguments and evidence in the dispute. Once the Arbitrator has had time to consider all the arguments and materials, they will deliver an Award, which can be registered as an enforceable Order of the Court.

What’s the difference between arbitration and Court?

Arbitration offers a more flexible and efficient means of resolving disputes than the Court process. It is less formal than the Court process, and the process can be customised to suit the parties and their needs. Parties are able to present their arguments and get determination of their dispute quickly and potentially more cost-effectively. Unlike in Court, parties are able to choose their Arbitrator, the date of the arbitration (within some limits), and often the location of the arbitration. Importantly, parties are generally able to resolve their matters within a matter of months rather than waiting up to three years to have their matter determined by the Court. In addition, arbitration is often a more cost-effective way to resolve your matter.

What is the National Arbitration List?

The National Arbitration List has been established by the Family Court and Federal Circuit Court in an effort to reduce the strain on the system causing excessive delays and costs to parties. Essentially, the Court will order that consenting parties attend arbitration, and one of three Judges will be assigned to manage the case whilst the arbitration process runs its course. When the managing judge receives the case, they will allocate a mention date for the matter four months in the future. That date will either be vacated (because arbitration has already happened), administratively adjourned (because arbitration has been scheduled to happen after the mention date), or called over to ascertain the progress of arbitration. Should the Court need to intervene to ensure compliance with the Court Orders or any directions of the arbitrator, they will do so at the mention.

To learn more about the National Arbitration list and arbitration in general, click here.

We understand that property matters can be very complex and can take an emotional toll on all parties involved. Here at the Family Tree, we are here to help you move through family transition in a holistic way through legal, counselling, and referral and support. To learn more about our holistic approach to family law, click here. If you have any questions, or would like to contact one of our friendly Brisbane family lawyers, click here to contact our office.

Authors: Eustacia Yates and Tabitha Gulley.

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