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FAMILY LAW ARBITRATION THE MELBOURNE PROJECT
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  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