Arbitration as an Alternative in Family Law

3 December 2024, By Brett Hartley of Hartley Family Law

 

Unfortunately, parenting matters cannot be referred to Arbitration, but parties can consent to have their property and spousal maintenance disputes referred to and dealt with by an Arbitrator, rather than a Family Court Judge.

Typically, the best matters for family law Arbitration in a property sense, are those ones where the pool is not overly substantial, nor are there overly complex issues at stake.  For instance, if there are third parties involved and many Trusts and corporate entities involved, then Arbitration will not be suitable. 

However, there are many disputes that are smaller in nature but are intractable, due to the attitude of one or both of the parties, or there are legitimate strong arguments for the Court to exercise discretion one way or the other and the parties just need a decision to help them move on with their lives. 

The advantages of Arbitration are as follows:-

1. The matter can be heard discretely in a private Court setting, rather than in the formal Court arena;
2. The parties can choose an arbitrator who is experienced in family law (often this is a senior barrister or retired judge);
3. There is less formality to the process of arriving at the Arbitration in that Directions and Orders for the Arbitration can be agreed and settled amicably between the lawyers and Arbitrator without many unnecessary personal appearances in Court, pursuant to Practice Directions and the like;
4. The Arbitrator’s Agreement will usually provide for a decision to be handed down within 28 days in the form of an Award, which can be registered and take effect as an Order of the Family Court;
5. There are limited grounds of Appeal, relating only to issues of Law after the Arbitration is decided.

It is always important to negotiate and mediate disputes if parties come to us without a fixed agreement, but if that fails, then the option of Arbitration is often a quicker and overall less expensive method to resolve a dispute where the resolution has been difficult. 

If you need any assistance or a discussion about your family law matter, please do not hesitate to contact our client services manager, Tyanne.