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What is Arbitration and Will it Resolve My Family Law Matter?

By 11 June 2020Family Law
Arbitration

If you work in the corporate world, you are probably familiar with the concept of arbitration even if you haven’t personally experienced it. You may not know, however, that it can also be used to resolve family disputes. In fact, new rules have recently been introduced to promote the use of arbitration for the resolution of certain family law matters. These rules include the Family Law Amendment (Arbitration and Other Measures) Rules 2015 which amended the Family Law Rules 2004, allowing for the inclusion of a new Chapter 26B on arbitration.

Keep reading to learn more about arbitration and how it may be used to help resolve your family law matter.

What is arbitration?

In the context of family law, arbitration is defined under Section 10L of the Family Law Act. Specifically, it is defined as, ‘a 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’. 

Or, to put it in simpler terms, arbitration is: A process that takes place outside of a court in which people involved in an argument each present their side of the story, along with supporting evidence, to someone other than a judge who then makes a decision to resolve the matter.

Who can serve as an arbitrator?

The Family Law Act also explains who can serve as an arbitrator in family law cases. As set forth in Section 10M, an arbitrator must have the following qualifications:

  • Be a legal practitioner; and
  • be certified as a family law specialist by a State or Territory legal professional body; or
  • have at least five years as a legal practitioner with at least 25 percent of their case load during that time pertaining to family law matters;
  • completion of specialist arbitration training conducted by a tertiary  institution or a professional association of arbitrators; and
  • have his or her name on a list, kept by the Law Council of Australia or by a body selected by the Law Council of Australia, of legal practitioners that are also qualified arbitrators.

Is arbitration an option in all family law matters?

No. In the context of family law, arbitration cannot be used for the resolution of parenting matters. However, it can be used for the resolution of disagreements about property and financial issues.

Another interesting point is that it can be used to resolve an entire financial or property matter, or certain aspects of the disagreement(s). This means that arbitration may be an option for you if you and your ex-spouse have agreed on everything except for one relevant issue. It also means that arbitration may be a viable option if you can’t agree on anything at all.

For instance, arbitration may be helpful if you can’t agree on the value of a business or asset. It may also be helpful if you agree on the general percentage split, but are at odds over the balance sheet.

Benefits of arbitration in family law

When compared with court proceedings, arbitration has several benefits. One is that it is voluntary. Another is flexibility. For example, arbitration hearings can be held prior to, during or after court proceedings have been initiated.

Even if a matter is referred by court order, you and your former spouse may also have a certain amount of discretion as to how the arbitration is conducted. This is because you may be able to prepare a written arbitration agreement before the hearing(s). In it, you can detail the issues that the arbitration should address and how it should proceed.

Additional benefits include:

  • Efficiency – arbitration is usually quicker than traditional litigation.
  • Cost – arbitration tends to be less expensive than traditional litigation.
  • Setting – because it takes place outside of a courtroom, arbitration is less formal than traditional court proceedings, lessening stress and anxiety for many participants.

Is the arbitrator’s decision binding?

There are two things to consider here. The first is that the Family Law Act gives an arbitrator the same protection as a judge. As Section 10P states: “An arbitrator has, in performing his or her functions as an arbitrator, the same protection and immunity as a Judge of the Family  Court has in performing the functions of a Judge.”

The second is that Regulation 67S of the Family Law Regulations 1984 stipulates an Arbitrator’s award is enforceable as if it were an order. Specifically, it states: “A party to a registered award may apply for enforcement of the award as if the award were an order made under Part VIII of the Act.” In other words, if you are involved in a family law matter decided by an arbitrator, the arbitrator’s decision will be recorded. Once it is, you have the same rights to apply for enforcement of the decision as you would if it were a court order.

But there is a catch. Although an arbitration award is binding, the law allows for judicial review in certain circumstances. Specifically, a court may review and overturn the arbitrator’s decision based on any mistake in the interpretation of or ruling on a point of law. A court may also change the arbitrator’s ruling if it is clearly unjust or unfair.

The bottom line

Because no two marriages, families or separations are the same, there isn’t a universal methodology or solution that works for everyone. The best way to decide whether alternative dispute resolution, such as arbitration, is best for you, is to consult a qualified legal professional.

McNamara Law has the skills and experience needed to assess your unique circumstances. Once we have done so, we can provide comprehensive legal advice and representation that is suited to your needs. Contact our Ipswich Lawyers to learn more today on 13 58 28.