Blog Post

Under s10L of the Family Law Act, parties can choose to take part in Arbitration, it is an informal process, other than the judicial process, in which parties to a financial dispute present arguments and evidence to an independent arbitrator, who makes a determination to resolve the dispute.

Who is arbitrator

Arbitrators 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. Under the Regulations, an arbitrator has to be:

• • • A Legal Practitioner who is either accredited as a Family Law Specialist recognized as such by the relevant State Law Society or Association or who has practiced as a Legal Practitioner for at least 5 years with at least 25% of work done in that time in relation to Family Law
    • Has completed specialist arbitration training conducted by a tertiary institution or professional association of Arbitrators; and
    • Is included in a Law Council of Australia list of Practitioners approved by the Council which is the list now maintained by AIFLAM.

Two types of Arbitration

• • • A court-ordered arbitration ordered pursuant to section 13E of the Family Law Act (court-ordered arbitration); and
    • A relevant property or financial arbitration as defined in section 10L(2)(b) of the Family Law Act (private arbitration). A private arbitration does not need to be commenced in court.

Matters can be arbitrated

Family Arbitration can only be used for property disputes within Family Law matters and does not cover parenting issues. For example:

1. 1. Property matters;
   2. Spousal maintenance and maintenance agreements;
   3. Financial agreements made pre, post or during the marriage;
   4. Superannuation agreements.

Advantages of Arbitration

1. 1. Control of the process and the degree of formality – The arbitration can be designed to meet the needs of the individual parties and their issues.
   2. Flexibility– An arbitration does not require the same level of formality as a Court hearing. It can be conducted at any venue, eg online or venue suite parties, and at any time, eg weekend or public holiday.
   3. Choice of the decision maker – The parties are able to choose an arbitrator with whom they have confidence.
   4. Avoidance of delay– By setting their own timetable, the parties can avoid the delays inherent in the formal Court processes, obtain a prompt resolution of disputed issues, and have certainty that the hearing will take place on the agreed date.
   5. Promptness of decision– The arbitrator agrees to provide his or her award and reasons within a specified period (generally not later than 28 days from the hearing).
   6. Confidentiality– Arbitration takes place in a confidential setting. Arbitrators take an oath not to disclose any communication or information received in their capacity as arbitrators.
   7. Binding result– An arbitral award is a conclusive determination of the dispute subject to the rights of the review provided in the Act and is binding and enforceable.
   8. Cost– By designing an arbitration process that meets their individual needs, and avoiding the costs of the Court processes, parties can achieve significant savings. Further, as a result of arbitration taking place at a time of their choosing, valuations remain current and the expense of updating material is avoided.

After an Arbitration

The arbitrator must provide a copy of the arbitration award to each party.

In a court-ordered arbitration, the arbitrator must inform the Court that ordered the arbitration within 7 days when an award is made.

In a court-ordered arbitration, if the arbitrator terminates the arbitration because the arbitrator considered that a party to the arbitration does not have the capacity to take part in the arbitration, the arbitrator must refer the matter to the Court within 7 days: see regulation 67L of the Family Law Regulations.

In any arbitration where subpoenas have been issued by a Court, the arbitrator must inform the Court that issued the subpoenas if the arbitration is suspended, terminated or otherwise ends.

Speak to CFS Legal in confidence, for more information about family Law Arbitration, please email: info@cfslegal.com.au