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Appeals ruling: Family court can’t order parties into parenting arbitration

By June 10, 2021November 16th, 2021No Comments

A father has had his family law appeal allowed in part after arguing, among other things, that his primary judge had erred by ordering the parties attend arbitration if they were unable to successfully mediate an outcome in their parenting matter. The appeals court agreed that the primary judge did not have the power to make such an order. That’s because the power to make orders relating to family law and arbitration is limited under the Family Law Act 1975 . Let’s take a quick look at this case.

The matter, given the pseudonym Defney & Radnor, raised the subject of whether a primary judge had made a mistake in ordering a mother and father to attend arbitration to resolve their parenting conflict. The appeals court found that the primary judge had erred, because under the law, the family court can only order parties to attend arbitration in financial matters (and further to that, only “with consent” of the parties).

In this high conflict litigation, the father and mother had already entered into final property settlement orders by consent. However, there remained a great deal of parenting matters to sort out at a hearing.

Throughout the primary judge’s reasons for judgment, repeated references are made to the parties having to resolve various parenting matters through counselling, mediation or arbitration. Orders were made, including for example:

“Absent agreement regarding the form of Orders…the parties are to attend mediation, and in the absence of resolution, the parties are to attend arbitration, with the costs of both processes to be borne equally by the parties;” and

“Regarding any other issue relating to the past and current parenting Orders, the parties are to attend mediation in the first instance, and failing agreement, they shall attend arbitration, with the costs of both processes to be borne equally by the parties.”

But the appeal judges said: “The [Family Law] Act makes provision for orders for arbitration of financial matters with the consent of the parties. There is no provision which allows arbitration for the determination of parenting disputes (s 10L and s 13E of the Act). The order requiring the parties to participate in arbitration was beyond power.”

The primary judge had made the unfortunate remark that “a ‘re-configuration’ of time-with arrangements should be negotiated and resolved as I have indicated – through counselling, mediation, arbitration. Such basal matters should not consume the time and resources of the Court.”

The appeal judges took exception to this, commenting that the primary judge had erred in “viewing the contest through the prism of there being an alternate dispute resolution process which would absolve the court from the responsibility of finally determining the dispute between the parents”. In reality, the family law courts are appropriately preoccupied with such “basal matters”.

Can you ever arbitrate a parenting issue?

While the Family Law Act does limit arbitration to financial and property matters, it’s interesting to note that the appeal judges here pointed out that: “It may be possible to resolve a parenting dispute with the assistance of non-court ordered arbitration if the parties subsequently signed consent orders or a parenting plan in the terms of the arbitral award”, though they noted this wasn’t how the primary judge had dealt with issues in this case.

You may also like to read our blog on family law and arbitration generally. Or, read about how the various alternative dispute resolution processes (mediation, collaboration and arbitration) differ.

You can read this judgment in full here.

Do you need assistance with a family law matter or do you have any questions regarding whether arbitration might be a suitable process in your situation? Please contact Canberra family lawyer Cristina Huesch or one of our other experienced solicitors here at Alliance Family Law on (02) 6223 2400.Please note our blogs are not legal advice. For information on how to obtain the correct legal advice, please contact Alliance Family Law.

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