1 / 25

FAMILY LAW ARBITRATION THE MELBOURNE PROJECT

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

roary-spence
Download Presentation

FAMILY LAW ARBITRATION THE MELBOURNE PROJECT

An Image/Link below is provided (as is) to download presentation Download Policy: Content on the Website is provided to you AS IS for your information and personal use and may not be sold / licensed / shared on other websites without getting consent from its author. Content is provided to you AS IS for your information and personal use only. Download presentation by click this link. While downloading, if for some reason you are not able to download a presentation, the publisher may have deleted the file from their server. During download, if you can't get a presentation, the file might be deleted by the publisher.

E N D

Presentation Transcript

  1. FAMILY LAW ARBITRATIONTHE MELBOURNE PROJECT

  2. 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)

  3. 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

  4. Two distinct species • “Relevant property or financial arbitration”: s10L(2)(b): Private • “Section 19E arbitration”: s10L(2)(a): Court-annexed

  5. 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)

  6. 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))

  7. What can’t be arbitrated? • Parenting issues • Child support issues

  8. Arbitration Options • Single issue • Selected issues • All issues • On the papers • Short form • Modified hearing regime • Full hearing

  9. 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

  10. Role of Court cont… • Set aside awards: s13K • fraud/non-disclosure • void, voidable, unenforceable • impracticability • bias • lack of procedural fairness

  11. 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

  12. 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

  13. Powers of Arbitrator cont… • Admit written evidence • Modify rules of evidence • Make an interim award • Encourage settlement • Refer questions of law to Court

  14. 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

  15. Variables in Arbitration Process • Type of arbitration • Level of formality • Issues • Documents required • Representation • Procedural steps • Witnesses

  16. Variables in Arbitration Processcont… • Evidence (oral; written) • Rules of evidence • Timetable • Conduct of arbitration

  17. The Arbitration Agreement • Issue(s) to be arbitrated • Time estimates • Full disclosure • Process • Provision of information • Exchange of documents • Hearing • Award • Cost

  18. The Arbitration Agreement cont… • Submissions • Time frames • exchange of material • witness statements • delivery of award • Time estimates • Preparation • Hearing

  19. The Arbitration Agreement cont… • Time and place • Oral hearing? • Witnesses? • parties • experts • other • cross examination

  20. Benefits to Parties • Flexibility • Control and design of process • Speed • Confidentiality • Level of formality • Choice of decision maker • Cost • Binding result

  21. 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

  22. THE MELBOURNE PROJECT • Initiative of AIFLAM/FLS • Designed to assist: • Court • Practitioners • Clients • Three Tier Model • Fixed composite fees • Three bands

  23. THE MELBOURNE PROJECT • 75 qualified arbitrators: • Three levels of fees Composite Daily Fee Amount Band 1 $10,000.00 $5,000.00 Band 2 $7,500.00 $3,750.00 Band 3 $5,000.00 $2,500.00

  24. 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

  25. THE MELBOURNE PROJECT • Flexible • Simple • Time efficient • Cost effective • Choice of arbitrator • Outcome focussed

More Related