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Can you arbitrate a parenting matter?

By September 15, 2020February 23rd, 2024No Comments

Can you arbitrate a parenting matter?: You may have heard of arbitration as a potential Alternative Dispute Resolution process for family law matters. However, you may not be so clear about what kinds of family law matters can be arbitrated—and may be wondering “can you arbitrate a parenting matter?” So here’s a quick look at the use of family law arbitration and whether it may be suitable for you.

The answer to the question “can you arbitrate a parenting matter?” is, at this stage, no. Arbitration can only be used to settle property and financial matters in family law. However, if you are running a case which has both parenting and property issues, it may be a good strategy to resolve the property side of your matter using family law arbitration. However, the parenting issues must be resolved either via mediation (which is also required to be attempted by parties before they can initiate parenting proceedings in court), or collaboration.

What is arbitration?

Arbitration is an alternative to the litigation process which mirrors the adversarial nature of litigation but offers particular advantages:

  • Faster – With the dire situation in the family court system, waiting for a final hearing can take years, whereas arbitration can be a much, much faster way to resolve the dispute.
  • More economical – litigation is by far the more expensive option.
  • Privacy – The arbitration is conducted in private rather than a public court, with confidentiality at its core. Awards handed down by arbitrators are not reportable or published.
  • More continuity – In court, there’s no guarantee the same judicial staff will hear all aspects of your case. On the other hand with arbitration, one person (chosen jointly by the parties) is retained for the entire time.
  • Versatility – The court system has far more constraints on parties than arbitration.

How does it work?

First, both parties need to consent to the process going ahead.  A qualified arbitrator is then engaged – this is typically a barrister or experienced solicitor but could also be a former judge.

What can be arbitrated?

While you cannot use arbitration for a parenting matter, you can refer other family law matters to arbitration. This includes spousal maintenance, disputes about binding financial agreements/superannuation agreements and matters involving execution and compliance with court orders.

What can’t be arbitrated, aside from parenting matters?

Certain matters are not permitted to be arbitrated. These includes matters involving negative equity, if there is an unvalued business, if there is an unsecured third party claim, single issues in a property hearing as a stand alone issue.

Note also that because arbitration is privately funded (the parties absorb the arbitrator’s fees, venue hire, transcription costs, etc), it may not be economical to pursue if you only have a small asset pool.

Should we arbitrate parenting matters?

Some countries do successfully allow arbitration of parenting matters, including in the UK. It’s regarded as another useful Alternative Dispute Resolution process open to parents. It remains to be seen if family law reform in Australia will see us head towards a similar situation where arbitration can be used in child disputes.

Do you need assistance with a family law matter, or perhaps more information on whether arbitration is suitable for 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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