What is Family Law Arbitration?

Arbitration is a process (other than a judicial process) in which parties to a dispute present arguments and evidence to an arbitrator, who makes a determination to resolve the dispute. 

A family law arbitrator is only able to make a determination about property and financial issues, including property settlements, spousal maintenance or disputes about financial agreements.  Arbitration is not available for child-related proceedings.  The Family Court of Western Australia has published a brochure about family law arbitration, which is available on the Family Court of Western Australia website.

If you wish to commence family law arbitration, please complete and return the Request to Commence Family Law Arbitration form.

Why use Family Law Arbitration?

Family law arbitration may result in a more prompt determination than a hearing in the Family Court.

One purpose is to provide a timely and intensive dispute resolution process in which parties either reach an agreement between themselves during the process or a binding decision is made based on the material before the arbitrator within a reasonable period of time.

Arbitration is particularly suited to the more straightforward family law matters, which might involve modest asset pools or involve mainly superannuation interests.

Benn provides a "short form" arbitration that allows for a Preliminary Conference to discuss the arbitration and identify the issues, the preparation and exchange of financial documents, some limited cross-examination of parties and witnesses at a final hearing and the presentation of submissions by each party as to what is a just and equitable outcome in the circumstances of your particular case.

In many (but not all) cases, a prompt decision may provide the best opportunity for parties to move on with their lives following their separation and focus on caring for their children (quite often with the support of the other party to the arbitration), obtaining or maintaining employment and providing for their future.

Arbitration Room

Can I still reach an agreement with my former partner?

Yes.  If, at any point during the arbitration process, you and your former partner reach an agreement, you are able to agree to terminate the arbitration process or seek that the arbitrator make an award in terms of the agreement.

If the agreement you have reached complies with the requirements of the legislation, the arbitrator can make an award by consent which can be registered in the Family Court of Western Australia and become binding on the parties.

Is the decision of the Arbitrator binding?

A party to an award may apply to register the award in the Family Court of Western Australia. 

An application to register an award made in an arbitration must be in accordance with a Form 8.

An award that is registered in the Court has effect as if it were a decree made by the Family Court.

Can the decision of the Arbitrator be Reviewed or Set Aside by the Court?

Yes, but only in limited circumstances.  A party may apply for a review of the award on questions of law by a single judge of the Family Court of Western Australia.  The Judge may:

  • determine all questions of law arising in relation to the arbitration; and
  • make such decrees as the judge thinks appropriate, including a decree affirming, reversing or varying the award.

A party may also apply to set aside an award registered in a Court and the court may make a decree affirming, reversing or varying the award or agreement.  The Court can only do this if the Court is satisfied that

  • the award or agreement was obtained by fraud (including non-disclosure of a material matter); or
  • the award or agreement is void, voidable or unenforceable; or
  • in the circumstances that have arisen since the award or agreement was made it is impracticable for some or all of it to be carried out; or
  • the arbitration was affected by bias, or there was a lack of procedural fairness in the way in which the arbitration process, as agreed between the parties and the arbitrator, was conducted.

The arbitration proceedings are recorded on a state-of-the-art digital recording system to ensure that parties are able to obtain transcripts of the arbitration if required.

What are the main requirements in relation to Family Law Arbitration?

An arbitrator must determine the issues in dispute between the parties to the arbitration in accordance with the Family Law Act 1975 (Cth) or, if applicable, the Family Court Act 1997 (WA).

An arbitrator must also conduct an arbitration with procedural fairness (for example, giving each party to the arbitration a reasonable opportunity to be heard and to respond to anything raised by another party).

The arbitrator is bound by the rules of evidence unless the parties agree that the rules of evidence do not apply.  If the parties agree, an arbitrator may inform himself or herself on any matter in any way that he or she considers appropriate.

In an arbitration, a party may appear in person, or be represented by a legal practitioner.

Arbitration may be:

  • voluntarily entered into between the parties prior to or outside of the Family Court process; or
  • if all parties to Family Court proceedings agree, ordered by the Family Court during the course of family law proceedings. 

Benn Hill provides family law arbitration pursuant to an Arbitration Agreement.  The parties and the arbitrator can agree to vary the Arbitration Agreement at the Preliminary Conference.

The arbitrator may make procedural directions to facilitate the arbitration.  If a party to an arbitration does not comply with a procedural direction given by the arbitrator, the arbitrator may suspend the arbitration.

A party can also issue a subpoena to a third person:

  • to require the person to attend the arbitration to give evidence;
  • to produce documents; or
  • to attend the arbitration to give evidence and produce documents.

A party can also apply to the Court for the court to “make orders the court thinks appropriate to facilitate the effective conduct of the arbitration”: section 13F.  The application is made in accordance with a Form 7.

The arbitrator may, at any time before making an award in the arbitration, refer a question of law arising in relation to the arbitration for determination by a single judge of the Family Court of Western Australia.

At the end of an arbitration, the arbitrator must make an award.  The award must include a concise statement setting out:

  • the arbitrator‘s reasons for making the award; and
  • the arbitrator‘s findings of fact in the matter, referring to the evidence on which the findings are based.

What are the costs of the arbitration?

Benn Hill offers an arbitration allowing for limited hearings and cross-examination over a hearing of one to two days at a fixed fee of $3,500 including GST (for the arbitrator’s fee only); that is, $1,750 for each party.

The fee is made up of $200 for each party to initiate the arbitration process and to conduct the first hearing, which is the Initial Arbitration Conference.  The balance of the cost of the arbitration process is $1,550 and is only payable once the parties have agreed to proceed with arbitration after the Initial Arbitration Conference.

There may be other disbursements the parties incur for an arbitration, including conduct money, the preparation of transcripts or the costs of Single Expert reports.  The parties and the arbitrator can agree on a different arrangement if they have special requirements for a different and more extensive form of arbitration.

Contact Details

Benn Hill

ECU Business Centre
Unit 18, 15 Barron Parade

JOONDALUP  WA  6027

0413 856 299
(08) 9301 1438

benn@bennhill.com.au


Benn Hill - Barrister & Solicitor

Experienced, legally trained and child-focused

  • Professional & personal service
  • Prompt appointments
  • Mediation sessions may occur even if one party has a violence restraining order in place
  • Competitive pricing
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