Family Law disputes can often be incredibly time consuming and place significant financial and emotional burdens on all the parties who are involved. These burden are exacerbated by the delays and under-resourcing that is prevalent in the broader Family Court system. As such, there has been a push towards resolving disputes and finalising matters through Alternative Dispute Resolution (ADR) methods including Family Arbitration. This article will explain what Family Arbitration is and how it may be advantageous to you if you are experiencing a marriage or family breakdown.
What is Family Arbitration?
Family Arbitration is a dispute resolution process by which parties’ present arguments and evidence to a Family Arbitrator who then makes a determination in order to resolve the dispute, in a similar manner to court proceedings, but with a few key distinctions. Arbitrators are generally legal practitioners with extensive family law experience and training, who are selected by the parties. This ensures they can facilitate proceedings in the fairest way possible.
Matters that can be referred for Family Arbitration include:
- Property matters;
- Spousal maintenance;
- Financial agreements; and
- Execution and compliance with court orders.
Advantages and Disadvantages of Arbitration
The primary advantages associated with Family Arbitration include how efficient and relatively inexpensive the process is. Decisions (or ‘awards’) are given within 28 days, which is significantly faster than the formal court system. Not only do parties save on costs associated with preparing a matter for court, but they are not tied up in lengthy litigation preventing them from working and moving forward with their lives. In addition, the Family Arbitration process is more flexible than traditional court proceedings, offering the parties greater autonomy over issues such as the time and date of the arbitration and procedures of how evidence is to be presented. Arbitration is also completely voluntary and confidential, which means the outcome and the issues discussed between the parties and the arbitrator cannot be discussed externally or published.
However, whilst there are numerous benefits associated with Family Arbitration, it is important to note that where family matters are more complex or potentially involve a power imbalance between the parties (such as instances of family violence), it may be more appropriate to engage in the formal court process. In some instances, it may also be more difficult to seek relief if you are unhappy with the Arbitrator’s decision, compared to doing so in court proceedings.
What if I am unhappy with the outcome of Arbitration?
Arbitrators are protected with the same immunities that the courts have. Therefore, the decisions made during Family Arbitration are final and binding on the parties once they have been registered.
However, if an error of law has been made, the decision can be reviewed by a court who can make determinations of issues of law and choose to either uphold or alter the decision made by the Arbitrator. Generally, only an error of law will justify the review of an arbitrator’s decision.
However, in exceptional circumstances of unreasonable or prejudiced decisions, the court can also intervene. In doing so, the court will consider factors including:
- Whether there as fraud or misrepresentations involved in the decision;
- Whether the decision is void, voidable or unenforceable;
- Whether circumstance have arisen that make the decision impractical;
- Whether there was any bias on behalf of the Arbitrator; or
- Whether there was a lack of procedural fairness in the arbitration process.
How Etheringtons Solicitors can help with your family law matter
At Etheringtons Solicitors, we have a highly experienced and strategic team who will work with you to achieve a desirable outcome in your family law matters. If you are concerned about your property, divorce or parenting disputes, or want to consider Family Arbitration, please do not hesitate to contact our office by calling 02 9963 9800 or via our contact page.