What is Family Law Arbitration?

“Arbitration is a process in which parties to a dispute represent arguments and evidence to an Arbitrator, who makes a determination to resolve the dispute.” s10l(1) Family Law Act

In other words, Arbitration is an alternative dispute resolution process where the parties work together with a neutral third party, the Arbitrator, who makes the final decision based on the evidence and arguments presented by the parties without the need to go to Court. Decisions made by the Arbitrator are legally binding.

The Arbitrators who make the decision are experienced legal practitioners who are specially trained and accredited in Arbitration.

Arbitrators must be accredited by the Australian Institute of Family Law Arbitrators and Mediators (AIFLAM) to be able to conduct family law Arbitrations.

Is My Matter Suitable For Arbitration?

For a matter to be determined at Arbitration, both parties must agree to attend the Arbitration.

Alternatively, the court can order the parties to attend Arbitration.

Only financial matters such as property settlement, spousal maintenance and financial agreements can be arbitrated.

Parties can elect to go to Arbitration to determine the who matter or a few issues.

Example Case: Gary’s Property Settlement

Last month Gary, 46, separated from Carol, 52, his partner of 10 years. Gary and Carol were in a de-facto relationship before separating. They lived together with their two dogs.

Gary and Carol own the following properties:

(a) An apartment Carol bought before the relationship started;
(b) An industrial warehouse Gary purchased 5 years ago, he works at the warehouse as a mechanic; and
(c) A property they purchased jointly when they started living together.

Last week Carol filed an Initiating Application in court seeking final property orders. Gary and Carol have attended mediation to resolve the matter, but unfortunately, could not reach an agreement.

Gary wants to settle his Family Law matter and move on in life, he doesn’t want to wait for the lengthy and often delayed court process. Gary is concerned that the longer his matter is in court the more legal fees he will incur.

Can Gary attend Arbitration?

If Gary and Carol both agree to go to Arbitration they can get a final decision within a few weeks or months. Family Courts are flooded with cases and the wait time to get a date for a final hearing is very long.

This means the parties will continue to suffer through legal costs and the stress of many hearings before the matter is resolved. Therefore, Arbitration is a cost-effective and faster option for Gary and Carol.

What are the benefits of Arbitration over going to court?

● Arbitration is quicker than a court hearing because the parties can arrange the Arbitration as soon as possible, depending on the availability of the Arbitrator.
● The Arbitration is confidential and the arbitral award is not publicly accessible or published like the Court’s Judgements.
● The Arbitration will take place at a time and place convenient to the parties.
● The parties choose the Arbitrator that will determine their matter, a choice that is not available to the parties in a Court process.
● The arbitral award is final and binding on all parties.
● Whilst the parties have to pay the Arbitrator’s fees (generally equally shared by the parties) and the other costs related to the arbitration, these costs are usually less than a court hearing.
● Just like in court, parties can be cross-examined on their evidence at an Arbitration.
● Both parties are required to make full and frank disclosure.

For Gary and Carol Arbitration is definitely preferable to going to court. It will save them time and money.

Interested? Next Steps.

If you think Arbitration is the next step for you, or you want more information on how it works?

Get in touch with one of our knowledgeable family lawyers who can assist you to understand the process and whether it is a good fit for your matter.

Contact us, email info@cominoslawyers.com.au or call 02 8999 1800.