Family Law Arbitration
Published November 20th, 2020 and updated July 29th, 2021
The wait times within the Family Court and Federal Circuit Court of Australia (Family Courts) can take a long time due to the Family Courts being at capacity. Most matters take 12 to 18 months (or longer), but that can seem like an eternity, especially if you cannot move on financially. For most people, the better option is to proceed with family law arbitration.
In certain circumstances, family law arbitration is necessary to help resolve matters that are too difficult for an individual or group of people alone. This process only works in the appropriate set of cases and cannot replace courts entirely. On the other hand, when needed, arbitration may provide relief from conflict, preserve dignity, and save time and money. However, this process can only be used in certain circumstances such as:
- Maintenance agreements.
- Matters relating to property.
- Financial agreements, during and after the marriage.
- Superannuation agreements.
- Compliance and execution with court orders.
If you have tried everything from negotiation, mediation and a court-ordered conciliation process and are now waiting to have a hearing before a judge, there is another way that you can settle your property (or spousal maintenance) matter.
The Most Efficient Way To Resolve Family Law Arbitration
Due to the Family Courts operating at capacity, the courts prioritise parenting matters over property disputes. The backlog of unresolved cases has resulted in excessive delays, and wait times can be two years or more.
During these wait times, parties will continue incurring expenses such as what is spent on retaining legal representation while they await a hearing date and obtaining updated property and business valuations. With an increase in success rates and shorter waiting periods due to new reforms coming into effect, it doesn’t make sense to go to the Family Court when you can utilise the services of an independent arbitrator.
Family Law Arbitrator, Paul Ross, is an accredited family law specialist and has significant experience in family law matters. Paul is a qualified family law arbitrator who has undergone specialist training on how to deal with personal conflicts amicably without resorting to litigation.
Paul also has experience dealing with international arbitration cases in other countries, including the United Kingdom, Italy, the USA, Germany and France, and speaks French as a second language.
Arbitration is a flexible process, which can be tailored to meet the needs of the parties and the issues to be resolved. Importantly, and assuming you are ready to proceed, family law arbitration can be organised relatively quickly. While the court may take many months after your hearing to deliver a judgment, your arbitration agreement can include a clause that the award will be released within a reasonable period, usually within 21 days.
Increased Control, Flexibility & Convenience
Parties can control the overall process whilst court proceedings are generally more rigid, for instance; Parties can mutually agree on a date and location of their Arbitral hearing through arbitration decisions made by both sides and assistance from an arbitrator who will be impartial assisting them in reaching a fair decision.
With the increased convenience and access for family law matters due to flexible scheduling options, you don’t have to worry about disrupting work schedules or travelling long distances.
Arbitration is a formal process in which both parties present their case to an independent third person (the arbitrator). The arbitrator considers evidence and arguments presented by the parties and makes a determination (or “award”) to resolve the dispute. The parties are bound by the arbitrator’s decision, and the award is registered with the Family Courts. Arbitration is a confidential process that can only take place if both parties agree.
In many cases, arbitration is used in industrial relations disputes or contractual disputes between businesses, but it can also be utilised in family law property and spousal maintenance matters. The Family Law Act 1975 (Cth) deals comprehensively with arbitrations; including, how an award can be registered in court, how the arbitration will proceed (if you cannot agree), how complex questions of law can be referred back to the court to decide and how the award can be reviewed.
When Can Family Law Arbitration Begin?
You do not have to wait until you have exhausted all other options and are waiting for your hearing. You can take up the option of arbitration at any time.
The determination made by a family law arbitrator is known as an Award, which can be registered with the Court if either party requests it. Once filed, the opposing party has 28 days to contest the decision before they become binding and enforceable like any other court order.
An arbitrator must be a legal practitioner with significant experience in family law matters who has undertaken specialist arbitration training and is registered with the Law Council of Australia. The list of family law arbitrators includes several former judges and highly respected family law barristers and solicitors, including Sage Family Lawyers’ own Paul Ross.
The Family Law Arbitration Process
The family law arbitration process is underpinned by an agreement between the parties and their arbitrator. The process begins with a selection of an agreed-upon arbitrator, who will set out various parameters for the proceedings to follow, such as:
- The appointment of the arbitrator.
- Appointment deadlines.
- Forms of dispute resolution (i.e., mediation or arbitration).
- Timetable considerations.
- Receipt from evidence and from other sources (i.e., experts and documents etc.).
- Circumstances and procedures when arbitration can be terminated.
- Cost of arbitration and the responsibilities of those involved in payments.
What If I Don’t Want To Use Arbitration?
A decision by an arbitrator is not always binding, but there are certain cases where arbitration can be viewed as a favourable option. For example, in some complex asset pools, the parties may dispute particular facts or values such as business value and need for liquidation of assets; however, family arbitration could still be beneficial because it will avoid litigation entirely while deciding these types of issues with relative ease.
Decisions made through Family Law Arbitration do not have to replace all aspects of litigation, which would otherwise occur any time two people disagree on something related to their property management responsibilities.
How Mediation Can Assist With Arbitration Matters
Mediation is a great way to solve problems. It can be beneficial when solving discrete issues or practical problems, such as day-to-day arrangements for children. By having an impartial third party mediate the discussion between two spouses, they can provide solutions that work best for their individual family circumstances.
Parties in a divorce can seek independent legal advice to help throughout the process. Seeking this kind of guidance, as well as mediation, will provide reassurance during these difficult times. Mediation is not suitable if there’s a risk that one spouse might be hiding assets or trying to take advantage of someone else (especially when there’s an imbalance between power). If you don’t trust your partner fully mediation is unlikely to work, in which case family law arbitration will be the better option to choose.
If you are looking for a way to resolve your family law dispute, family law arbitration may be the right choice. Arbitration is less expensive than litigation and can help move cases forward more quickly without the long delays of the Family Court.
We hope that this information has been helpful as you consider what options might work best for you going forward. If you think arbitration might be right for you or you would like to discuss your options, please contact one of our team members on 03 9070 9839 or email email@example.com with any questions or concerns about how we can help you move forward.