Most people are aware that the Family Law Courts in Australia are under-resourced and overloaded with matters causing family disputes to take years to even get to a trial (let alone judgment which may be delivered months later). Families suffer excessive delays, significant expense and the emotional and psychological toll that comes with ongoing litigation.
There is a way however to achieve a legally binding resolution to your matter within a manner of months, rather than years – arbitration. It should be pointed out however that this applies only to property disputes, and unfortunately parenting matters are not able to be determined by arbitration.
Arbitration is a ‘non-judicial’ process in which an Arbitrator (appointed and paid for by the parties) delivers a judgement called an ‘Award’, to resolve the dispute between parties. The parties conduct the matter before the Arbitrator exactly like they would before a Judge in a Court, which will be based on arguments and evidence presented by the parties involved. Parties’ can present expert evidence and cross-examine those experts, in the same manner, they would before the Court.
What are the benefits of Arbitration?
The main benefits of Arbitration, as opposed to remaining in the Family Law Courts system for years on end are:
- Reduced delays and costs – rather than paying lawyers for years (usually two or more years waiting for trial), and having to update your financial disclosure or property valuations more than once, you can hold your hearing within a matter of months. You can the disclosure exercise, obtain property valuations for any assets in dispute, book in your Arbitrator and select your hearing date (subject of course to mutual availability!). Arbitrators must give their Award within 28 days of hearing.
- Increased Control, Flexibility, and Convenience: Courts will assign you a trial date often years in advance and in some instances, the Court can even adjourn your trial to another date if particularly urgent matters require the Court’s attention. Arbitration is highly flexible as to the when, where and how the proceedings are run.
- Confidentiality: the same confidentiality applies to Arbitration as it does when matters are before the Court.
- Legally Binding: the decision (Award) is registered with the Court and becomes legally binding. There are only a handful of ways an Award can be appealed, such as an error of law, fraud, bias, lack of procedural fairness or an inability to enforce due to change in circumstances since Award was registered, so there is some security in respect of the binding nature of the Award. Any appeal must be filed within 28 days of the Award being registered with the Court.
It should be noted that the whole dispute doesn’t need to be dealt with by an Arbitrator – you can engage an Arbitrator to run what we lawyers call a ‘discrete issues hearing’ surrounding specific points or arguments which may if determined on their own, allow the parties to resolve the remainder of their dispute on their own (or perhaps with the assistance of a mediator).
The only real limitation that Arbitration bears is that it cannot determine parenting matters and the main reason for this is due to the evidentiary issues which can often arise in those disputes. Quite often the evidence in property matters (aside from that which the parties may provide themselves) is limited to documentary evidence which often speaks for itself.
Arbitrators are often lawyers with many years of experience in the Family Law sphere, including currently practising barristers and solicitors. They receive the same immunities as a Judge in the conduct of the Arbitration and can determine a matter as competently as our appointed judicial officers in a much faster timeframe.
The Arbitrators fees are usually met equally by agreement between the parties’ and whilst it is not usually an inexpensive exercise with respect to the ‘up-front’ costs, it does provide the option to deal with your property dispute with your ex-partner in a timely manner and there are savings to be made when measured with the costs of litigating matters over years in the Court system.