The impossibly long delays in the Family Law Courts is forging a new way to deal with property proceedings. It is not uncommon for delays to be as long as three years to have a property matter determined. For many people this is not only frustrating but costly.

Arbritration has always been available under the Family Law Legislation Act (“the ACT). Arbitration is available under section 13 E in relation to disputes between married and de facto couples in two ways:

  1. Court referred arbitration
  2. Party initiated arbitration

Interestingly, arbitration can be used by parties to settle particular or discrete disputes, such as issues of valuation of assets or determining an issue of fact, such as the date of separation.

How will arbitration be conducted?

Regulation 67 of the Family Law Regulations provides that an arbitrator must determine the issues in dispute in accordance with the Act and must conduct the arbitration with procedural fairness. An arbitrator must take an oath to preserve confidentiality. If the parties agree, then the rules of evidence can be ignored, so that the arbitrator is able to get information she or he requires to undertstand the issues in dispute.

New Rules, the Family Law Amendment (Arbitration and other Measures) Rules 2015

The new rules cane into effect on 1 April 2016 and they insert a new chapter in the Family Law Rules 2004, which provides for a clearer understanding of two main issues:

  1. The first is the duty of disclosure. The duty of disclosure is central to all property proceedings and in the case of arbitration it is no exception. Each party has a duty to each other as well as the arbitrator to give timely exchange of financial information and details.
  2. The second area  deals with subpoenas. In an arbitration each party can apply to the court for the issue of a subpoena.

Can an Arbitration decision be challenged?

The simple answer is yes.  In order to challenge the decision, the decision has to be registered at court. It may be the case that the parties themselves do not want to register the award, making it unenforceable.

There is a right to challenge an arbitration decision on points of law. A decision can also be challenged where a court is satisfied that the decision or agreement was obtained by non-disclosure of an important matter or is unenforceable, or there was bias or a lack of procedural fairness.

For more information on arbitration and property matters please contact us.