Family Law Arbitration – What Does That Mean?

Introduction to Family Law Arbitration

Family Law Courts of Australia are severely under-resourced and are currently at maximum capacity. As a result, families wishing to be heard before the Family Court are experiencing excessive delays, serious financial strain, and significant emotional stress. Arbitration is an alternative dispute resolution process that provides a form of relief for these issues.

Arbitration is a non-judicial process in which an Arbitrator will make a binding determination to resolve a dispute between parties. The outcome reached by the Arbitrator will be based on arguments and evidence presented by the parties involved. An expert may attend to provide evidence, and parties may have lawyers representing them.

It is important to highlight that Family Arbitration is limited to property disputes for Family Law Matters, therefore parenting issues are excluded from the process.

It has several benefits over court proceedings, primarily being the ability to finalise matters in an efficient manner, reducing costs and delays.

Arbitration differs from mediation where parties seek to reach their own agreement with the assistance of a mediator, as well as arbitration being limited to property related family matters.

Benefits of Arbitration

Arbitration is an alternative dispute resolution process which carries many benefits to all parties involved. They include:

1. Increased Control, Flexibility, and Convenience

• Parties can control the overall process, whilst the process for court proceedings is generally more rigid. For instance:
• Parties can mutually agree on a date and location for the Family Arbitration hearing. On the other hand, court proceedings will have a date assigned where the parties must attend the Family Court.
• Family Arbitration is highly flexible as the level of formality in court proceedings can be minimised in Family Arbitration so that the process can be designed to accommodate the needs of the individual parties.
• Parties can determine where and when they wish to have the Family Arbitration hearing to occur, therefore it conveniently suits their own personal priorities.
• Parties can jointly select an independent arbitrator in whom they are confident will perform their functions in a neutral manner. Additionally, they can negotiate and agree to the fees for employing their services.

2. Reduction in Delays and Costs

• The Family Courts are at maximum capacity and prioritise parenting matters over property matters. The significant backlog of unresolved disputes has resulted in excessive delays, with approximate wait times of two years for a final hearing date.
• During the wait times, parties will continue to incur expenses, such as money spent to retain legal representation.
• As parties have control over the arbitration process, they can design a process tailored to their circumstance to avoid incurring any unrelated costs.
• By scheduling their own timetable, parties can avoid unnecessary court processing delays and be confident that the arbitration will occur at the agreed date and location.
• The combination of these factors results in parties achieving a prompt resolution in a timely manner.

3. Confidentiality

• Family Arbitration is a confidential process between the parties involved as it is not open to the public like court proceedings.
• Arbitrators are also obligated to take an oath which bars them from disclosing communication or information that they have received in performing their functions as an arbitrator.

4. Arbitrator’s Decision is Prompt, Accurate, and Binding

• The outcome reached by an arbitrator will be registered with the courts, therefore it becomes binding and enforceable as if it were a court order.
• The outcome reached will closely align with judgments made by the Family Court as the decision will be made under the same principles as the Family Court.
• Generally, a decision will be delivered no later than 28 days from the arbitration hearing, whilst a Family Court’s determination may take approximately 3 months to deliver.

5. Valuation of Property is Current

• Valuation of the property will remain current during the Family Arbitration hearing due to the efficiency of having it heard before an arbitrator.
• Expenses in relation to updating any material regarding the value of the property is avoided.

6. Resolving Issues Independently

• The arbitrator does not have to make a decision regarding the entire matter and can instead isolate independent property Family Law issues to make a determination on.
• For example, determining the value of an asset so that if the matter continues to the Family Court, there is no time wasted disputing this fact.

Limitations of Family Arbitration

Family Arbitration cannot be employed for all family matters. It is limited to family law property disputes; therefore, parenting issues are excluded from the arbitration process.

Some examples of when Family Arbitration may be used:

• Family law related property disputes;
• Superannuation splitting law;
• Pre, post, and current marriage financial agreements; and
• Spousal maintenance or de-facto partner maintenance.

Accredited Family Law Arbitrator

There are conditions that must be met by a person in order to be considered an Accredited Arbitrator. These include that the individual:

• is a legal practitioner; and
• is either:
  • an accredited Family Law Specialist; or
  • has practised as a legal practitioner for at least five years, where at least 25% of the work practised by the person in that time was in relation to Family Law matters; and
  • has completed specialisation arbitration training conducted by a tertiary institution or a professional association of arbitrators; and
  • included in a list, kept by the Law Council of Australia or by a body nominated by the Law Council of Australia, of legal practitioners who are prepared to provide arbitration services.

Fees involved with Arbitrator

Arbitrators may charge fees for their services; however, they are obligated to provide written information regarding those to the parties prior to beginning the arbitration hearing.

It is also important to note that there may be fees associated with the facility, for instance hiring a room in order to conduct the hearing.

Arbitrator Immunity

In performing their functions as a Family Arbitrator, arbitrators enjoy the same protection and immunity that a Judge in the Family Court would receive in performing the functions of a Judge.

Determination made by Arbitrator

The determination made by a Family Arbitrator is known as an ‘Award’, which can be registered by the Court on application by either party to the hearing. The opposing part will have twenty-eight (28) days to contest the registration of the Award, however once this time has lapsed, then the Award is as binding and enforceable as a Court Order.

Error of Law

The Court may review the determination made by an Arbitrator to determine if an error of law is present. If the Court identifies an error of law, then they may either confirm, quash, or make variations to the award.

Unreasonable or Prejudiced Awards

A Court may be able to rectify an Award that is visibly unreasonable or prejudiced, even if there is no error of law present.

Some instances where a Court may identify a visibly unreasonable or prejudiced Award:

• Lack of procedural fairness in the Arbitration hearing;
• Bias in the Arbitration hearing has affected the outcome; and
• The Award is no longer feasible due to a change in circumstances since the determination.

Family Arbitration Hearing Location

A JB Solicitors arbitrator will gladly attend any locations as necessary to provide our service.

If a facility has not yet been organised, JB Solicitors can make arrangements for a suitable facility to meet the requirements of all parties involved.

JB Solicitors’ Arbitration Team

JB Solicitors has a leading team of lawyers who have amassed extensive knowledge and expertise in the area of Family Law.

Our Family Law Division is led by John Bui, an Accredited Arbitrator who can offer professional Arbitration services in all family-related property matters. He is the Solicitor Director of the firm and is accredited through the Australian Institute of Family Law Arbitrators and Mediators.

He has been recognised by the NSW Law Society Journal and was only one of ten lawyers across Australia to have been nominated for the 2018 Lawyer’s Weekly 30 Under 30 award for his outstanding work in the area of Family Law.

JB Solicitors’ is highly experienced in handling all types of family law matters, which is why you can be confident that our professional arbitration service will achieve the fairest outcome for all parties involved. We aim to provide an unparalleled level arbitration service, ensuring that a professional standard is achieved so that we can exceed all your expectations.

We provide fixed fees for our arbitration services. Click here to view our fixed fee flyer for family law arbitration.

If you would like to engage JB Solicitors’ arbitration service, or simply wish to learn more, please feel free to visit our main office in Canley Heights, or alternatively, contact us on: