Arbitration in Family Law Australia
At the end of the arbitration, the arbitrator must make an arbitral award. The standard arbitration agreement requires that the award be served within 28 days of the conclusion of the arbitration. The formal requirements for an arbitral award are set out in Rules 67P. In arbitration, a party may appear in person or be represented by counsel. In both family law mediation and family law arbitration, there is an impartial third party who helps the parties resolve a dispute. In mediation, a mediator helps the parties communicate about a settlement for property or parenting issues by conveying messages between the parties and filtering out negative communications such as criticism and guilt so that the parties can focus on a solution. The mediator can help clarify outstanding issues between the parties and suggest possible solutions. Since arbitration is a consensual agreement, the parties can simply go to an arbitrator and ask them to settle their dispute. If a proceeding is conducted on foot, Rule 67D provides that the parties may file a Request for Form 6 to appeal to arbitration. In fact, leave to make an oral request for referral to arbitration is granted without further delay. At the end of the family law arbitration, the parties receive an arbitration award. The award shall determine the reasons for the arbitrator`s award and the findings of fact in the matter. The award can then be registered with the court.
In accordance with section 13H of the Family Law Act, the arbitral award, once registered, takes effect as if it were a court order. An application for registration of an arbitral award in arbitration must correspond to a Form 8. There may be other payments incurred by the parties for the arbitration, including the costs of conduct, the preparation of transcripts or the cost of individual opinions. The parties and the arbitrator may agree on a different arrangement if they have special requirements for a different and more comprehensive form of arbitration. The advantage of family law arbitration is that cases can be concluded in a matter of weeks or months, and the cost of arbitration is usually less than either party would pay if the case progressed to a final hearing. Section 10M of the LFLA defines an arbitrator as “a person who meets the requirements prescribed in the regulations to be an arbitrator.” Those requirements are set out in Regulation 67B of the Family Law Regulations 1984 (`the Regulations`). The Australian Institute of Family Law Arbitrators and Mediators (“AIFLAM”) is responsible for maintaining the roster of family law arbitrators. Only individuals on AIFLAM`s list meet the definition of “arbitrator” for the purposes of the LFLA. If someone is hired as an arbitrator but is not accredited by AIFLAM, the award cannot be registered. The AIFLAM list can be found at www.aiflam.org.au/~aiflam/search-aiflam.php.
Typically, the parties initiate proceedings in family courts and schedule arbitration once the disclosure is complete and they have attempted mediation. In this way, they avoid the long waiting time for a trial date. Once the sentence is rendered, it can be registered by the family court and the proceedings will be terminated. In many (but not all) cases, an immediate decision can provide the parties with the best opportunity to continue their lives after their separation and focus on caring for their children (often with the support of the other party to the arbitration), maintaining or maintaining their employment, and taking charge of their future. The arbitration will be recorded on a state-of-the-art digital registration system to ensure that the parties can receive transcripts of the arbitration if necessary. The scope and dispute in arbitration may be determined by the parties. For example, the parties may request arbitration that addresses only one aspect of the case. The remaining issues may be resolved by the parties themselves by mutual agreement or by a court. If the parties do not wish to make oral submissions, the decision may be taken only on the basis of written submissions. This avoids the parties having to appear before the arbitrator or call witnesses. At the end of an arbitration, the arbitrator must make an arbitral award.
The award must contain a concise statement that arbitration may be arranged at any time. Arbitrators can issue injunctions on certain financial matters, which can likely be achieved much faster than a preliminary hearing in family court. Arbitration should not be avoided as there may be concerns about disclosure, as the parties` obligation to make full and open financial disclosure in this process reflects their obligations in family court. There are very long delays in obtaining trial dates and judgments in family courts. To avoid delays, arbitration can be an effective mechanism to resolve your family law case quickly and often at a lower cost. However, arbitration is generally limited to financial matters (excluding child support) and cannot be used to resolve disputes between parents. Lawyers are required to advise clients on arbitration. Article 12A of the FLA requires that “the persons concerned … be informed by separation or divorce of the means of dispute resolution other than the application for orders under this Act”. Section 12B imposes a special obligation on consultants to ensure that clients are aware of “arbitration options available for dispute resolution”. Rule 21 of the Legal Profession Uniform Law Australian Solicitors` Conduct Rules 2015 states that “a lawyer shall ensure that the lawyer`s advice in invoking the coercive powers of a court is appropriate. for the robust development of the client`s case in the case”.
This could indicate that consideration of arbitration is mandatory as an alternative means of decision-making. Australian family law arbitration is not commonplace. In my experience, some family lawyers are skeptical of arbitration (mainly because it is unknown to them) and therefore avoid the process or approach it in the same way as the court system; This means that they do not enjoy the unique benefits of arbitration. There is a great deal of flexibility in the processes and procedures that could be applied in arbitration. It can range from a decision “on paper” to a procedure identical to a full hearing before the Court of Justice. However, it is possible to adopt more creative processes, such as: The possibility of opposing the registration of an arbitral award is not found in the LFLA, but in Rule 67Q(3) of the Rules. The law, regulations and rules are silent on the basis on which the registration of an arbitral award could be challenged. However, the grounds on which registration could be refused were discussed in Braddon & Braddon [2018] FCCA 1845 and Pavic & Pavic [2018] FCCA 3386 (at [19-39] and in particular at [34]): “The objection to registration relates to the formation of the arbitral tribunal and the conditions necessary for that purpose, such as notification, submission to arbitration and others.” An obvious disadvantage is that the parties cannot resolve parental or maintenance issues through arbitration. This means that if there are contentious issues in parenting and ownership/maintenance, the parties may not want arbitration to resolve their property settlement and then a separate hearing to determine the remaining issues. From the beginning of a case to the final verdict in the family courts, the parties could expect the trial to last at least 18 months; Much of the delay occurs when the parties are waiting for their negotiation date. .