Arbitration is an alternative process to Court proceedings, which you and your former partner can engage in by agreement, that still involves an independent party (an Arbitrator rather than a Judge) making a binding decision in relation to how your property should be divided. This option is preferable to those who require someone to make a decision about their financial matters, but wish to avoid attending court.
Financial or property disputes between married or de facto couples can be arbitrated. This includes disputes regarding the transfer of property, the division of superannuation, and the repayment of debt. Children’s issues and parenting matters cannot be arbitrated.
Both parties must agree on the appointment of an Arbitrator. The Federal Circuit and Family Court of Australia can also make an Order to appoint an Arbitrator with the consent of the parties.
The decision made by the arbitrator is called an ‘Arbitration Award’. Once the Arbitration Award is registered with the Federal Circuit and Family Court of Australia, it is binding and enforceable. There are limited grounds for challenging or setting aside an Arbitration Award, such as in circumstances where an error of law has been made.
While attending Arbitration is less stressful for many than attending court, it’s still a formal process that results in a legally binding decision on your property settlement or financial dispute. Having a trusted lawyer with you on the day – and to assist with preparation beforehand, will ensure that you feel supported throughout the process.
Our Director Judy Stewart is an Accredited Family Law Specialist and has previously served as an Arbitrator, giving her unique insight into the process.
After an earlier career in social work, Judy has practised exclusively in Family Law since 2003. Since 2017, Judy has been recommended as a Leading Family and Divorce Lawyer on Doyle’s annual list of recommended lawyers. Judy is also a nationally accredited mediator and registered family dispute resolution practitioner, well-known for her pragmatic, organised and responsive approach.
If you would like Judy Stewart or another senior lawyer to attend arbitration with you, please get in touch.
A Preliminary Conference is the first step in the Arbitration process. The Preliminary Conference addresses various procedural matters, including the issues in dispute and whether a Hearing is required. Parties should allow approximately one hour for the Preliminary Conference.
Once the Preliminary Conference has occurred, the matter may proceed to a Hearing, where each party will be cross-examined, and submissions will be heard. Alternatively, the parties may choose to have their matter determined by their Arbitrator “on the papers” and dispense with a Hearing.
Parties will then be provided an award and a copy of the written reasons for the determination.
If you are attending arbitration and require legal support, our team can assist you, both with preparation and on the day. Please contact us if you have any questions regarding Arbitration or wish to have one of our lawyers attend with you on the day.
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Our legal team includes some of Brisbane’s most experienced family lawyers, including Accredited Specialists and Senior Associates with expertise across all areas of family law.
Arbitration is usually quicker and less expensive than proceedings in the Federal Circuit and Family Court of Australia. This is because there are fewer procedural requirements and the parties can avoid costs associated with litigation.
Unlike Court proceedings, arbitration can be tailored to meet the specific needs and availability of the parties involved. It is conducted by a senior member of the legal profession with specialist knowledge in family law.
Financial or property disputes between married or de facto couples can be arbitrated. This includes disputes regarding the transfer of property, division of superannuation, and repayment of debt.
Children’s issues cannot be arbitrated.
The length of the arbitration process depends on the availability of the parties and the arbitrator. It is usually much faster than Court proceedings.
The Preliminary Conference is the first step in our arbitration process. Judy Stewart is available to conduct the Preliminary Conference as soon as possible. You should allow one hour for the Preliminary Conference.
Once the Preliminary Conference has occurred, the matter may proceed to a Hearing on a date agreed between the parties and arbitrator. During the Hearing, each party may be cross-examined and submissions heard. Alternatively, the parties may choose to have their matter determined by Judy “on the papers”, dispensing with a Hearing.
Judy Stewart will provide the arbitration award within 28 days of any Hearing or receipt of submissions.
An arbitration award is the final decision made by an arbitrator. It has the same effect as a Court Order but is issued by the arbitrator selected by the parties involved in the dispute, rather than by a judge.
Yes. Once the award is registered with the Federal Circuit and Family Court of Australia, it is binding and enforceable. There are limited grounds for challenging or setting aside an arbitral award, such as when an error of law has been made.
Once you have received the arbitration award, you may wish to apply to register the arbitration award with the Federal Circuit and Family Court of Australia. More information regarding this process can be found on the Court website.
The parties can negotiate and settle their dispute at any time during the arbitration process. If an agreement is reached outside of arbitration, the arbitration process can be terminated.
Arbitrators are experienced family law professionals, such as senior lawyers, barristers, or retired judges, who have undergone specialised training. They must be legal practitioners with at least five years of practice, 25% of which must have been in family law. In Australia, family law arbitrators must be accredited through the Australian Institute of Family Law Arbitrators and Mediators (AIFLAM).
No. While arbitration can be ordered by the Court, parties can also voluntarily engage an arbitrator to resolve their dispute outside the Court system. The other party must agree to the appointment of an arbitrator before proceeding.
Yes. We can reach out to the other party to enquire whether they agree to our appointment as arbitrator. However, we cannot progress further with arbitration until the other party consents to the appointment.
Yes. Both parties must be represented by a lawyer to attend arbitration.
An arbitrator will make a binding decision which has the same effect as a Court Order. A lawyer must represent you at arbitration.
On the other hand, a mediator does not make judgements on “right” and “wrong” or impose a solution on the parties. Mediators fairly and impartially assist the parties to identify and discuss matters in issue between them with the objective of resolving the dispute. You do not need a lawyer to attend mediation with you.
If you are interested in attending mediation conducted by Judy Stewart or Temika Slee of our office, please click here.
Preparation for family law arbitration is similar to preparing for Court. You will need to follow the arbitrator’s directions and present relevant financial documents and evidence.
The Preliminary Conference can be held in person at our office, via Microsoft Teams, or by phone, depending on what is most convenient for you and your solicitor.
The location of the Hearing depends on the agreement between the parties and arbitrator. Judy Stewart can conduct Hearings in person at our dedicated rooms at no extra cost, or she can travel for arbitration, with travel time charged at the usual hourly rate. If arbitration does not occur at our office, you and your solicitor would be responsible for booking a venue and any room hire fees. With mutual agreement, arbitration can also take place at your solicitor’s office.
Alternatively, the parties may choose to have their matter determined by Judy “on the papers”, without the need for a Hearing.
Arbitration is a voluntary process, so both parties must agree to participate before an arbitrator is appointed. If one party refuses, the matter may need to be resolved in Court or through other methods such as mediation.
If a party fails to comply with the procedural directions, the arbitrator may suspend the arbitration. If non-compliance exceeds 28 days, the arbitrator may terminate the arbitration or refer the matter back to Court (in the case of Court-ordered arbitration).
An arbitration award has the same effect as a Court Order. If one party refuses to comply, the other party may need to apply to the Federal Circuit and Family Court of Australia to enforce the award.
If a minor mathematical or other mistake is identified, the party may bring it to the attention of the arbitrator and all other parties. The arbitrator may rectify the award under the “slip rule” and deliver a supplementary award.
Yes. There are limited grounds for appealing an arbitration award. An appeal must be based on an error in law, not dissatisfaction with the outcome. You may need to apply to the Federal Circuit and Family Court of Australia to appeal the award.
