Reaching Fair Agreements
Separating spouses (whether married or in a de facto relationship) can appoint a mutually agreed arbitrator to make a binding decision for the division of their property and payment of spousal maintenance. The arbitrator however cannot make decisions in respect of child support or parenting arrangements. The arbitrator must make their decision within the principles of the Family Law Act and in accordance with the case law of the Family Law Courts.
The arbitrator and spouses agree on what evidence and documents are to be provided and how the hearing is to be run. For example, it can be agreed that the arbitrator base their decision purely on written documents or with a short hearing for brief submissions. Alternatively, evidence can be given and parties cross-examined. Spouses may be able to agree on some issues and submit just the disputed issues to an arbitrator.
The flexibility of the arbitration process can allow a property settlement to be resolved quickly (typically within a few months rather than two to three years in court), privately and confidentially (no trips to crowded public court houses ) and at lower cost.
Arbitration is a good choice where:
Arbitration can occur without any court proceedings being commenced, or alternatively during the course of court proceedings.
Parties must first agree on the arbitrator who must:
The arbitrator will then arrange an arbitration planning meeting to discuss and agree on the evidence model of arbitration to be used. The arbitrator will set a timetable for the exchange of relevant evidence and documents, and dates for the arbitration hearing and the issue of an arbitral award. Arbitration models include:
Following the completion of the hearing, the arbitrator issues an arbitral award and reasons within an agreed time – generally 14 days.
The job of the arbitrator is to make a decision based on the law as set out in the Family Law Act and consistent with the case law of the Family Law Courts. The arbitrator must be neutral and independent and cannot advocate for one spouse versus the other. It is advisable therefore that parties have lawyers to ensure that the evidence and submissions they provide to the arbitrator correctly reflects the law and therefore persuasive on the arbitrator.
The arbitrator’s fees will depend on the complexity of the matter and the arbitration model used. As a guide, Matthew Shepherd’s fees for
One or both parties can register the arbitral award with a court (whether court proceedings have been commenced) and the registered award takes effect as a decree of the court, and brings any court proceedings in respect of property division or spousal maintenance to an end.
There are two remedies available to a party unhappy with the arbitral award.
Section 13J of the Family Law Act allows a party to seek a review of an arbitral award by a Family Law Court on questions of law only.
Section 13K of the Family Law Act provides grounds for a dissatisfied party to seek that an arbitral award reversed or varied. The court must be satisfied that:
These are the same remedies already provided under section 79A for the setting aside of court orders, but with the addition of bias and lack of procedural fairness. Bias in arbitration generally occurs where there is shared interests or relationships between the arbitrator and the parties. Procedural unfairness includes inadequate opportunity to present one’s case or lack of opportunity to correct or contradict matters prejudicial to one’s case.