Arbitration has been possible in property cases under the under the Family Law Act for 25 years, but it is only since new rules were introduced from April 1 2016 that all the elements have been put in place to provide a comprehensive system. These Rules are the Family Law Amendment (Arbitration and Other Measures) Rules 2015 and amend the Family Law Rules 2004 to insert a new Chapter 26B on arbitration. By promulgating the new rules, the Family Court is seeking to encourage this form of dispute resolution.
Arbitration now provides a good option for clients to resolve their property disputes if they cannot reach agreement quickly through mediation or negotiation. With the Family Court and the Federal Circuit Court under enormous pressure, there is no longer, in Australia, a quick, simple and cheap option for resolving family law disputes through the court system.
The Alternative Courtroom (TAC) offers a means for organizing arbitration quickly, efficiently, and at reasonable cost, using an online environment to exchange information prior to a hearing. All of the arbitrators are leading members of the legal profession, respected for their expertise in family property issues.
What is arbitration under the Family Law Act?
Arbitration is defined in s.10L of the Family Law Act 1975 as a process (other than the judicial process) in which parties to a dispute present arguments and evidence to an arbitrator, who makes a determination to resolve the dispute. It can either be undertaken by a private agreement or by referral from a court. Either way, it can only be undertaken on a voluntary basis.
An arbitration need not be of all aspects of the dispute. There could be arbitration of just one aspect of a case, for example, determining the value of a business or asset, or determining issues of fact which need to be resolved before settlement can be reached. Sometimes, for example, parties are in agreement about the overall percentage split but cannot agree on the balance sheet. Arbitration therefore has the potential to be very useful as part of the litigation process to help narrow the issues which a judge may need to determine, as well as being an alternative to litigation through the courts.
It is also possible to deal with interim issues through arbitration.
Once registered, an arbitral decision takes effect as if it were a decree of the court (s.13H).
Review of the decision is on a point of law only. However, there is scope for argument that even if the court does not find any error of law in an arbitrator’s reasons for decision, the court may still correct obviously unjust or inequitable decisions. See Prof. Parkinson’s article here.