FAMILY LAW ARBITRATION

THE MELBOURNE PROJECT

PART IIIB – COURT’S POWERS IN RELATION TO COURT AND NON-COURT BASED FAMILY SERVICES

Section 13A(1): OBJECTS OF PART

to encourage people to use dispute resolution mechanisms (other than judicial ones) to resolve matters in which a court order might otherwise be made…

to encourage people to use, in appropriate circumstances, arbitration to resolve matters in which a court order might otherwise be made, and to provide ways of facilitating that use.

(b)

(c)

What is Arbitration?

• a process (other than a judicial process)

• before an arbitrator (not a judge)

• in which the parties present evidence and arguments; and

• the arbitrator makes a determination to resolve the dispute

s10L(1) Family Law Act 1975

Two distinct species

• “Relevant property or financial arbitration”: s10L(2)(b): Private

• “Section 19E arbitration”: s10L(2)(a): Court-annexed

What Can Be Arbitrated?

Court referred/private• Spousal maintenance (s74) and variation (s83)• Declaration of interests in property (s78)• Alteration of property interests (s79)• Setting aside property orders (s79A)• Ante-nuptial/post-nuptial settlements (s85A)

What can be Arbitrated? cont…

Private arbitration only

• Part VIIIA financial agreements• Superannuation issues under Part VIIIB• Section 106B proceedings• (Probably) leave to proceed out of time

(s44(3))

What can’t be arbitrated?

• Parenting issues• Child support issues

Arbitration Options

• Single issue• Selected issues• All issues• On the papers• Short form• Modified hearing regime• Full hearing

Role of Court• Refer to arbitration by consent: s13E(1); Reg 67D

• Adjourn proceedings to enable arbitration: s13E(2)

• Make orders to facilitate arbitration: s13F; Reg 67E

• Make orders for interim relief pending award

• Determine questions of law referred by arbitrator: s13G

• Register awards: s13H

• Review awards (on questions of law): s13J

Role of Court cont…

• Set aside awards: s13K– fraud/non-disclosure– void, voidable, unenforceable– impracticability– bias– lack of procedural fairness

Registered Awards• Effect as though Court decree: s13H(2)

• May be enforced as if an order: s13H(2)

• Reviewable: s13J(1)

– by Judge or Federal Magistrate

– on question of law

• May be set aside (in prescribed circumstances):

s13K

Powers of Arbitrator (prescribed by Act and Regulations)

• Regulate procedure

• Require persons to attend to give evidence and/or produce documents

• Order documentation

• Administer oaths

Powers of Arbitrator cont…

• Admit written evidence

• Modify rules of evidence

• Make an interim award

• Encourage settlement

• Refer questions of law to Court

Duties of Arbitrator• Determine issues (in accordance with FLA)• Ensure procedural fairness• Accord natural justice• Make award

−Give written reasons−Set out findings of fact

• If Court-referred, inform court−Arbitration ended−Award made

Variables in Arbitration Process• Type of arbitration

• Level of formality

• Issues

• Documents required

• Representation

• Procedural steps

• Witnesses

Variables in Arbitration Process cont…

• Evidence (oral; written)• Rules of evidence• Timetable• Conduct of arbitration

The Arbitration Agreement• Issue(s) to be arbitrated• Time estimates• Full disclosure• Process

– Provision of information– Exchange of documents– Hearing– Award

• Cost

The Arbitration Agreement cont…

• Submissions

• Time frames

– exchange of material

– witness statements

– delivery of award

• Time estimates

– Preparation

– Hearing

The Arbitration Agreement cont…

• Time and place• Oral hearing?• Witnesses?

– parties – experts– other– cross examination

Benefits to Parties• Flexibility

• Control and design of process

• Speed

• Confidentiality

• Level of formality

• Choice of decision maker

• Cost

• Binding result

Benefits to Court• Faster resolution

• Reduction of delays

• Reduced need for interim hearings

• List not clogged with unnecessary cases

• Better utilisation of judicial time

• Better management of Registry-specific problems

−backlogs−delays in judicial replacement

• Avoid split hearings in Div 12A cases

THE MELBOURNE PROJECT• Initiative of AIFLAM/FLS

• Designed to assist:

– Court

– Practitioners

– Clients

• Three Tier Model

– Fixed composite fees

– Three bands

THE MELBOURNE PROJECT• 75 qualified arbitrators:

• Three levels of fees

Composite Daily FeeAmount

Band 1 $10,000.00 $5,000.00

Band 2 $7,500.00 $3,750.00

Band 3 $5,000.00 $2,500.00

THE MELBOURNE PROJECT

• Fees cover:

– All preparation (including preliminary meetings)

– One day of hearing

– The award

• Additional daily fee for extra days

• Award within 28 days

THE MELBOURNE PROJECT

• Flexible

• Simple

• Time efficient

• Cost effective

• Choice of arbitrator

• Outcome focussed