Arbitrators are independent parties who settle a family law matter regarding property and finances. They conduct arbitration which is a confidential process where parties in a family matter present arguments and evidence to arbitrators.
The Flexibility of Family Law Arbitration
People might have seen mediation and arbitration together and often interchange these two terms. Both of these methods are forms of alternative dispute resolution process and both are also less expensive and time-consuming compared to legal proceedings.
Arbitrations provide a flexible and efficient means of resolving domestic, international, and family law conflicts. This method relies on an arbitrator and legal practitioners to determine a resolution. On the other hand, mediation is a conflict resolution process that requires both parties to find voluntary solutions. This article will discuss family law arbitrators and the laws related to this topic.
When Can Family Law Arbitrators Help?
People dealing with family law matters can also use arbitration, apart from mediation, in order to resolve family disputes or conflicts. This includes an arbitrator deciding the outcome of a disagreement between family members. It’s important to remember that arbitrations only solve property and financial matters and not parenting matters. Parties must attend family law mediation sessions to resolve family law disputes.
For instance, Betty and her ex-spouse, Gregory agreed in dividing their assets after their divorce. However, Gregory refuses to provide spousal maintenance to Betty. Spousal maintenance is a form of financial support in which a better-earning party financially supports the lesser-earning party in Australia.
A family law arbitrator will only handle Gregory and Betty’s dispute on spousal maintenance since it involves finances. An arbitrator’s decision or ‘arbitral award’ is legally binding and enforceable. This award has the same effect as a court order and is issued within 28 days from the Australian courts.
International Commercial Arbitration
Family arbitrators can also handle commercial arbitration. Outside of family law matters, arbitrators typically handle international commercial arbitration which includes commercial disputes in the following sectors:
- Mining
- Resources
- Construction
- Engineering
- Other energy sectors
In practice, Australian corporations increasingly use international arbitration in these sectors, especially during cross-border transactions. Like family law, parties will need to provide concrete evidence in order to reach a decision.
Decisions in international arbitration are legally binding and final. Companies or businesses that entered into a commercial contract may also include a commercial arbitration agreement in case of a dispute.
What the Family Law Act Says About the Arbitration Process
Section 13E of the Act
According to Section 13E of the Act, people can hire family arbitrators to settle property and financial matters in family law. If things get out of hand during the court process, the federal court may adjourn the proceedings and conduct the arbitration process instead. This will generally require the consent of both parties before opting for this alternative dispute resolution.
Section 13F of the Act
Parties can submit an application to the federal court in order to facilitate arbitration in property or financial disputes in family law matters. Property disputes typically involve homeowners, landlords, property visitors and trespassers, family members, neighbours, and even government agencies. Although in family law, property issues may involve:
- Division of inherited property
- Purchased/purchasing property with a family member or relative
- Conflicts on joint ownership of a property
On the other hand, arbitrations can also resolve family law financial disputes, even if litigation was the traditional way of resolving them. This may include issues around:
- Division of property, liabilities, and income
- Spousal maintenance
- Child support payments
- Contract agreements that involve financial agreements
Section 13G of the Act
According to Section 13G of the Family Law Act, an arbitrator may refer his/her findings to the Federal Circuit and Family Court of Australia or a judge before making a decision. The arbitrator may do this on his/her own accord or upon the request of one of the parties involved in the dispute. Arbitrators are not allowed to give an award if a judge made a decision regarding the family law dispute.
Section 13H of the Act
According to Section 13H of the Act, winning parties may register their award in court which will take effect like court orders. Each case will determine how long a party may receive the award. Hence, an arbitrator’s decisions may take longer than what is expected. However, arbitration provides more efficiency instead of final hearings. Either party may also:
- Apply to register the award;
- Enforce the award for future purposes; or
- Vary the award in limited circumstances.
Section 13J of the Act
According to Section 13J of the Act, parties to a registered award may have the family court or a judge review it for them. Either one of these people will determine the decisions made in relation to the arbitration. The judge or family court may then have the ability to:
- Reverse the award; or
- Vary the award.
Section 13K of the Act
According to Section 13K of the Act, the family court and judges may only reverse or vary an award if:
- There is fraud involved(including non-disclosure of a material matter)
- It is void, voidable, or unenforceable
- It is impossible to carry out
- There was bias in the arbitration procedure
- There was a lack of procedural fairness
JB Solicitors’ Arbitration Services
We have highlighted how the arbitration process works in this article for people who are curious about arbitration in family law. Hence, this article will help prepare people if they want to have an arbitral award reviewed or if they want to go through arbitration. Our lawyers at JB Solicitors are here to provide legal advice for people who want to know more about arbitration.
Our Arbitrators’ Services
We can also have arbitration services for parties who want a legally binding decision for their property or financial disputes. Moreover, our legal practitioners can also help with international commercial arbitration for companies who want to settle a dispute of their own.
Indeed, court procedures are an option to settle these kinds of matters, but arbitration will enable parties to save more time and money. Are you looking for a cost-effective type of alternative dispute resolution in Australia?
Message and hire one of our arbitrators today.
