What happens if you have chosen to resolve your family law dispute with arbitration yet are unhappy with the outcome (the arbitral award)? Can you have the arbitral award set aside and restart your matter in family court? On the other hand, if you are satisfied with the award–how easy is it for your ex to challenge the arbitrator’s decision? For answers to all these questions, read on as we take a look at how you can try to set aside or vary an arbitral award.
[How to vary an arbitral award…continued]
Arbitration is a dispute resolution process existing outside the court system which still delivers a legally-binding decision. Parties to a dispute present arguments and evidence to a trained third party, often a former judge, who is known as an arbitrator. The arbitrator reviews the evidence from both sides and makes a determination to resolve the dispute.
Mirroring the rules around court proceedings, parties have a duty of disclosure to the arbitrator, and the issues in dispute are determined according to the relevant family law. Once registered, the arbitrator’s decision (called the “award”) is as binding and enforceable as if it were a decree/order of the court.
Arbitration can be used by separating couples to divide assets and determine outcomes in property and maintenance cases. However, children’s issues and child support issues may not be arbitrated at this stage.
Who benefits most from divorce arbitration?
Arbitration is increasingly used as an alternative to family law litigation for a number of reasons. There’s a high degree of control over the process including the ability to choose the arbitrator (you can’t choose your judge in the court system). You have privacy that you don’t have in open court, and the costs are usually lower.
The beauty of arbitration is the much shorter time taken to resolve. Instead of spending years waiting for courts to deliver decisions, arbitration can take just 5 to 8 weeks to reach a final decision.
Another great benefit is the ability to arbitrate a single aspect of a family law matter (such as determining the value of a business asset or establishing issues of fact in dispute) which may be holding up settlement of a matter.
The efficiency of the process is helped by the fact that there are limited grounds to set aside an award. This also promotes finality in the process. However, as the courts are concerned with delivering justice, there are still avenues to address perceived issues with an award. There has to be procedural fairness and real fairness due to the award, and the legislation allows for several ways to approach the need to set aside or vary an arbitral award.
How binding are arbitral awards really?
Arbitral awards are registered pursuant to s13H of the Family Law Act 1975. They essentially have the effect of a court order and are just as legally binding and enforceable as a court order.
Can they be changed or set aside?
Just as with outcomes in the court system, people can be unsatisfied with their arbitration outcome and wish to appeal it. Can this happen in the arbitral process? The answer is yes, in limited circumstances.
Firstly, if both parties are not happy with the award, they simply agree not to register it. So then the award can’t take effect.
Secondly, if one party objects to registering the award, they have limited grounds to object which are governed by reg. 67Q of the Family Law Regulations 1984 (the Regulations). These circumstances may involve issues around an arbitrator’s qualifications or arbitrating outside the scope of arbitration.
Once an award is registered, a party can still look for remedies under section 13J of the Act, wherein the courts can affirm, reverse or vary an award. If one party registers the award with the court and the other party isn’t happy with it, the other party has 28 days to apply to the court and provide reason why the agreement should not be registered, similar to the process of appealing a court order.
And under section 13K of the Act, the court specifies the limited reasons one might be able to argue at this point.
Reasons here again include if the parties didn’t consent to arbitration or the arbitrator wasn’t properly qualified. Or a party can try to prove an error of law. For instance, the award was obtained by fraud, was void, voidable or unenforceable, was affected by bias or lack of procedural fairness, or circumstances have changed making the award impracticable.
A recent example
A recent matter heard in the FCFCOA (given the pseudonyms Beirne & Beirne) illustrates the process. A husband and wife had used private arbitration to resolve their property dispute. They had a fairly modest asset pool worth about $350,000.
The husband made an application in the FCFCOA to register the arbitral award. The wife opposed registration and wanted the property issues to be heard afresh in the FCFCOA instead, but was unsuccessful and the award was registered.
You can read the above-mentioned judgment here.
Alliance Family Law are your ‘go to’ lawyers for arbitration. Please give Canberra family lawyer Cristina Huesch or one of our other experienced solicitors a call 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.
You might also like to read our blog on how the various family law Alternative Dispute Resolution processes differ from one another.
