Arbitration is an alternative way of resolving a dispute outside of the courtroom and is commonly used within areas of law such as Industrial Relations. Yet many clients and practitioners are seemingly unaware that it can be used within Family Law or, if they are aware, are reluctant to do so.
Such reluctance regarding arbitration may exist because there is very little common law to guide family law practitioners and judicial officers as to the process. However, that will continue to be the case when it is infrequently used within the jurisdiction.
Reluctance may also be based on a concern that following arbitration, the decision made by the arbitrator becomes binding and legally enforceable. If parties are reluctant to participate in arbitration for that reason bear in mind that the decision of the Arbitrator, known as the award, will only take effect and become binding on the parties when it is registered by the Court. The Family Law legislation does not provide a strict set of reasons that a party can suggest why the award should not be registered, however, such reasons are usually regarding the conduct of the arbitration and that of the arbitrator. They are still required to give parties due process.
Further, should the parties be unhappy with the Arbitrator’s determination of the dispute, they can apply to the Court for review of the award. The Court will then determine all questions of law arising in relation to the arbitration and then affirm, reverse or vary the award. The Court may also set aside the Award should they think it appropriate when considering the bases set out in section 13K of the Family Law Act 1975 (Cth) (“the Family Law Act”) .
Towards the end of 2018 we appeared before Judge Harman in the Federal Circuit Court on behalf of the Applicant Husband in the matter of Pavic v Pavic . The matter had been referred to Arbitration, with the consent of the parties, under section 13E of the Family Law Act and an arbitral award had been delivered. The Respondent Wife both objected to the registration of the arbitral award and further sought that the Court review same.
With little guidance from family law legislation, the Court sought assistance from other areas of law including the Commercial Arbitration Act 2010 (Cth), previous cases in both family and other jurisdictions, and articles written by judicial colleagues and academics. Ultimately the Respondent Wife withdrew her objection and the award was registered and her request for the award to be reviewed concluded in the award being affirmed by the Court.
Generally, we had a very positive and successful experience with Arbitration. The Arbitrator was professional, knowledgeable and delivered a concise yet comprehensive and well-reasoned award.
What was especially pleasing to us and our client was how time-efficient the process was, particularly when comparing the current delays experienced with the Family Courts. Arrangements were made for the Arbitration to occur some two months following initial enquiry (however there was the possibility of earlier if it had suited all parties) and the award was delivered a week later. However, bear in mind that the timeframes we experienced may differ depending on the matter and the Arbitrator’s availabilities.
The Arbitration proceedings were conducted in a way that the parties had discussed and agreed to prior to the arbitration, giving the parties a sense of control over how they wished for their matter to be heard.
If you and your former spouse are having difficulty determining your dispute following separation and having difficulty coming to an agreement, arbitration may be an option rather than pursuing drawn-out and costly litigation.
If you want further information about the matter of Pavic v Pavic , you can find the full judgment here: Pavic V Pavic
Lauren Ryan | Solicitor