Family law matters can be extremely time-consuming and expensive if a separated couple has to litigate at Court and go to a Final Hearing because they have not been able to reach an agreement.
The wait time for a Court to determine a family law matter at a Final Hearing is at least 12 months and likely even longer.
People should therefore always consider alternative family law dispute resolution options such as Mediation or Arbitration.
This post today will be focusing on Arbitration.
The major benefit of Arbitration is that matters can be finalised within a few months, not years! Further, the cost of Arbitration is typically less than what each party would pay if the matter progressed to a Final Hearing.
What is Arbitration?
Arbitration is a form of dispute resolution that parties can agree to participate in to resolve their property settlement matter on a final basis, as an alternative to a Mediation or Final Hearing.
Parenting and child support matters are not able to be included, so Arbitration is suitable for property settlement matters only.
An Arbitration is similar to a Final Hearing in that the decision of the Arbitrator is final and binding.
The Arbitrator is ordinarily a senior member of the legal profession such as a retired Family Law Judge or Senior Barrister and is nominated by agreement between the separated couple. The Arbitrator must have at least 5 years experience with at least 25% of that experience in family law. They must also complete specialist arbitration training.
Ordinarily, straight forward property settlement matters can be heard during a one-day hearing, in which evidence and arguments are presented to the Arbitrator the same as it would be to a Judge at a Final Hearing.
The preparation for an Arbitration is effectively the same as the preparation that would be required for a Final Hearing.
See link to the Court Direction about Arbitration for further information.
How Long Will An Arbitration Take?
An Arbitration can occur within a matter of a few months. In family law land, that is quick!
Within 28 days from the Arbitration, the Arbitrator will then provide an arbitral award (their decision) to the parties. This award sets out their reasons for making the award based on the evidence presented to them. The award is then registered with the Court and will take effect as if it were a final order of the Court.
Unlike Arbitrators, if you proceed to a Final Hearing, Family Law Judges are not bound to release their judgment within any specific timeframe and in our experience, you may not receive your judgment for 3 to 6 months after the Final Hearing. In extreme cases, some parties have waited up to 5 years to receive their Judgment from the Court.
What If I Am Not Happy With The Award?
It is possible to apply to the Court for the Award to be reviewed or set aside just as orders made by a Judge at Court can be appealed.
The grounds for review are contained in section 13J of the Family Law Act on a question of law, and grounds for setting aside are contained in section 13K of the Act.
Why Is It Not Used More?
One challenge with this form of dispute resolution is that both parties must agree to Arbitration.
In family law matters, we often see many self-represented litigants. Self-represented litigants are people who elect not to engage a lawyer through the Court process, and effectively represent themselves. In these instances, the litigant is not familiar with the law, their options or may just outright refuse to participate.
A Judge has the power to order or effectively compel a self-litigant (and any party at Court) to do something. However, this does not extend to compelling a party to go to Arbitration.
Further, this dispute resolution option it is a relatively new and unfamiliar alternative in family law. This means that many lawyers themselves are reluctant to advise their clients to agree to Arbitration.
Takeaway
There is much greater certainty for people around costs and timeframes with Arbitration in comparison to a Final Hearing. For this reason, we strongly encourage separated couples to consider exploring this as a potential alternative to resolving their matter.
Would You Like Further Information?
If you would like further information on any family law matters, please contact us today or book an appointment online.
By Tegan Martens
Director & Principal Lawyer
Martens Legal
DISCLAIMER:
The information contained on this site is for general guidance only. No person should act or refrain from acting on the basis of such information. You should seek appropriate professional advice based upon your particular circumstances.
