Family Law Practice Direction – Arbitration

(FAM-ARBITRATION)

1. Introduction

1.1 This Practice Direction applies to the following arbitrations under the Family Law Act 1975 (Cth) (Family Law Act):

  1. a court-ordered arbitration ordered pursuant to section 13E of the Family Law Act (court ordered arbitration); and
  2. a relevant property or financial arbitration as defined in section 10L(2)(b) of the Family Law Act (private arbitration).

1.2 It is to be read together with:

  1. the Family Law Act;
  2. the Family Law Regulations 1984 (Family Law Regulations); and
  3. the Federal Circuit and Family Court of Australia (Family Law) Rules 2021 (Family Law Rules).

1.3 All court ordered arbitrations and any private arbitration which requires orders to facilitate the effective conduct of the arbitration will be case managed by the National Arbitration List (NAL). Applications with respect to arbitration awards will also be managed by the NAL. Each division of the Court will have a Judge in charge of the NAL (NAL Judge).

1.4 Where parties have chosen arbitration, the Court and the NAL Judges will ensure that the supervisory power of the Court in relation to the conduct of arbitrations is easily accessible, cost effective and time efficient.

1.5 This Practice Direction applies to all arbitrations commenced on or after 1 September 2021. This Practice Direction will also apply to all arbitrations commenced prior to 1 September 2021, unless unfair or impractical to do so.

1.6 To the extent this Practice Direction is inconsistent with any act, regulation, rule, or other legislative provision (whether or not expressly listed above), the act, regulation, rule, or other legislative provision shall prevail.

Before an arbitration starts

1.7 Each prospective party to a court ordered arbitration must comply with the pre-action procedures in Schedule 1 of the Family Law Rules, unless an exception in rule 4.01(2) applies. Those pre-action procedures require parties to take genuine steps to resolve the dispute before proceedings are instituted. Parties contemplating participating in a private arbitration are encouraged to take genuine steps to resolve the dispute before commencing the arbitration process.

1.8 All arbitrations require an arbitration agreement pursuant to regulation 67F of the Family Law Regulations. An arbitration agreement may be signed by the parties electronically.

2. Disclosure and subpoenas

2.1 The duty to disclose applies to all arbitrations, being both court ordered arbitrations and private arbitrations: see Part 6.1 of the Family Law Rules. Each party to an arbitration has a duty to the arbitrator and each other party to the arbitration to give full and frank disclosure of all information relevant to the arbitration, in a timely manner.

2.2 Prior to the first preliminary conference for the arbitration, each party must serve on each other party:

  1. a Financial Statement or such other equivalent document setting out the parties’ respective financial circumstances; and
  2. the documents listed in sub-rules 6.06(8) and (9) (as applicable) of the Family Law Rules.

2.3 Unless otherwise agreed between the parties, the disclosure procedures in Part 6.2 of the Family Law Rules apply to arbitrations.

2.4 Documents produced for an arbitration must only be used for the purposes of the arbitration and must not be disclosed to any other person without the Court’s permission.

2.5 A party to an arbitration may apply to the Court for leave to issue a subpoena by filing an application as set out below.

3. Applications relating to arbitrations (excluding the registration of arbitration awards)

Parties to an arbitration application

3.1 An application for a court ordered arbitration must be made by all parties to the arbitration: see regulation 67D of the Family Law Regulations.

3.2 An application seeking orders to facilitate an arbitration and an application to review a registered award may be commenced by a party (or by parties jointly) to the arbitration.

3.3 An application referring a question of law to the Court may be made by the arbitrator: see section 13G of the Family Law Act.

3.4 An application must include all necessary parties: see Part 3.1 of the Family Law Rules. Unless the arbitrator is an applicant to the application, the arbitrator is not a necessary party.

Making an application and documents to file

Court ordered arbitration

3.5 A court ordered arbitration is commenced by filing a Form 6 – Application for Arbitration.

3.6 The following documents must be filed with a Form 6 – Application for Arbitration in court ordered arbitration:

  1. a Financial Statement from each party to the arbitration (unless a Financial Statement has previously been filed and the parties’ financial circumstances have not changed); and
  2. if any party to the arbitration is aware that the Financial Statement will not fully discharge the duty to make full and frank disclosure, an affidavit providing further particulars.

3.7 An applicant (or applicants jointly) may seek orders to facilitate the effective conduct of an arbitration (including orders for discovery or for leave to issue subpoenas) by filing an application in the following form:

  1. in the case of a court ordered arbitration, an Application in an Arbitration; or
  2. in the case of a private arbitration, a Form 7 – Application relating to relevant Property or Financial Arbitration; and
  3. for either court ordered or private arbitrations, an affidavit stating the facts relied on in support of the orders sought.

Private arbitration

3.8 A private arbitration does not need to be commenced in a court.

Referrals by arbitrator

3.9 An arbitrator may apply to refer a question of law to the Court by filing an Application in an Arbitration.

3.10 An arbitrator may refer any matter under regulations 67H(3)(b), 67K(b) or 67L(1)(b) of the Family Law Regulations to the Court by written notice to the Registry Manager.

Review of registered arbitration award

3.11 An applicant may seek to review a registered award pursuant to section 13J of the Family Law Act by filing an Application in an Arbitration.

3.12 The following documents must be filed with an Application in an Arbitration seeking to review a registered arbitration award:

  1. an affidavit stating the facts relied on in support of the orders sought and identifying the question of law on which the applicant seeks to review the arbitration award; and
  2. a copy of the award.

3.13 An applicant may seek to set aside a registered award pursuant to section 13K of the Family Law Act by filing an Application in an Arbitration.

3.14 The following documents must be filed with an Application in an Arbitration seeking to set aside a registered arbitration award:

  1. an affidavit stating the facts relied on in support of the orders sought; and
  2. a copy of the award.

When an affidavit is required

3.15 An affidavit is not required to be filed with a Form 6 – Application for Arbitration.

3.16 An affidavit must be filed with an Application in an Arbitration and a Form 7 – Application relating to relevant Property or Financial Arbitration, stating the facts relied on in support of the orders sought.

3.17 An affidavit must be filed in the proper form as outlined in rules 2.14 (Formal requirements for documents) and 5.08 (Limit on number and length of affidavits) of the Family Law Rules.

3.18 An affidavit is not required to be filed by an arbitrator applying to refer a question of law to the Court.

Urgent applications

3.19 If an application in relation to an arbitration is urgent, the applicant must seek an order that the matter be given an urgent listing (urgent application). An urgent application must be accompanied by:

  1. an affidavit stating the facts relied on in support of the urgent application; and
  2. a cover letter as to urgency, outlining the nature of the application and the basis upon which an urgent listing is required. The cover letter should refer to specific paragraphs of the affidavit relied upon in support of the urgent application.

3.20 If the arbitration is a court ordered arbitration, an urgent application should be made by filing an Application in an Arbitration.

3.21 If the arbitration is a private arbitration, an urgent application should be made by filing a Form 7 – Application relating to relevant Property or Financial Arbitration.

Notifying the other party/parties

3.22 The applicant (including the arbitrator when the arbitrator is the applicant) must serve the following documents on all other parties and the arbitrator in accordance with Part 2.6 or Part 2.7 (as appropriate) of the Family Law Rules:

  1. any Application in an Arbitration or Form 7 – Application relating to relevant Property or Financial Arbitration (as applicable); and
  2. any affidavit filed.

3.23 Where a party is the applicant, the applicant must serve each other party and the arbitrator within 7 days.

3.24 Where the arbitrator is the applicant, the arbitrator must serve the parties within 7 days.

3.25 Prior to the first Court event, parties seeking a court ordered arbitration must provide to the Court:

  1. the identity of the proposed arbitrator or the mechanics by which the arbitrator can be nominated;
  2. the end date by which the arbitration is to be concluded (not being more than six months from the date of referral to arbitration);
  3. the anticipated date of the parties’ first preliminary conference with the arbitrator; and
  4. where available, an executed a copy of the parties’ arbitration agreement with their chosen arbitrator.

3.26 If an interlocutory order is sought without notice being given to the respondent (application without notice), the applicant must satisfy the Court of the requirements set out in rule 5.11 of the Family Law Rules.

What the Court will do next

3.27 The NAL will run each Friday.

3.28 Upon filing a Form 6 – Application for Arbitration, an Application in an Arbitration or a Form 7 – Application relating to relevant Property or Financial Arbitration (as applicable) and supporting documents, the Court will fix a date as soon as practicable for the first Court event.

3.29 Any application made by a party for an urgent listing will be determined by a Judicial Registrar or the relevant NAL Judge on the papers.

3.30 Where an application cannot be accommodated on a Friday during the regular NAL list, the hearing of that application will be held at such other time and date as the NAL Judge directs, having regard to:

  1. the length of the application;
  2. the state of the arbitration;
  3. the urgency of the application; and
  4. such other matters as the NAL Judge determines as relevant.

3.31 All documents, including applications, affidavits, submissions and proposed orders, must be filed by 12:00 noon 2 days prior to the hearing, unless otherwise ordered by the NAL Judge.

3.32 If a Form 6 – Application for Arbitration is filed without compliance with the pre-action procedures and no exception is applicable, the Court may stay the application until such time as the applicant complies with the pre-action procedures: see rule 4.04 of the Family Law Rules.

4. Responding to an application

4.1 A respondent must file a Response to an Application in an Arbitration if consenting to or opposing any of the orders sought by the applicant in an Application in an Arbitration or a Form 7 – Application relating to relevant Property or Financial Arbitration.

4.2 However, if a respondent does not wish to contest any of the orders sought by the applicant and will submit to any order the Court may make, a Submitting Notice should be filed in accordance with rule 2.22 of the Family Law Rules.

4.3 An affidavit must be filed with a Response to an Application in an Arbitration, stating the facts relied on in support of the orders sought.

4.4 A Response to an Application in an Arbitration and any supporting affidavit must be filed within 7 days of service of an Application in an Arbitration or a Form 7 – Application relating to relevant Property or Financial Arbitration.

5. After an arbitration concludes

5.1 The arbitrator must provide a copy of the arbitration award to each party.

5.2 In a court ordered arbitration, the arbitrator must inform the Court that ordered the arbitration within 7 days when an award is made: see regulation 67P of the Family Law Regulations.

5.3 In a court ordered arbitration, if the arbitrator terminates the arbitration because the arbitrator considered that a party to the arbitration does not have the capacity to take part in the arbitration, the arbitrator must refer the matter to the Court within 7 days: see regulation 67L of the Family Law Regulations.

5.4 In any arbitration where subpoenas have been issued by a Court, the arbitrator must inform the Court that issued the subpoenas if the arbitration is suspended, terminated or otherwise ends.

6. Applications to register an arbitration award

Parties to an application to register an arbitration award

6.1 An application to register an arbitration award may be made by any party (or parties jointly) to the arbitration.

6.2 An application must include all necessary parties: see Part 3.1 of the Family Law Rules. The arbitrator is not a necessary party to applications to register the arbitration award.

Making an application and documents to file

6.3 An application to register an arbitration award is commenced by filing a Form 8 – Application to register arbitration award.

6.4 A copy of the award must be filed with a Form 8 – Application to register arbitration award.

Notifying the other party/parties

6.5 The applicant must serve the following documents on all other parties and the arbitrator in accordance with Part 2.6 or Part 2.7 (as appropriate) of the Family Law Rules:

  1. Form 8 – Application to register arbitration award; and
  2. a copy of the award.

6.6 The documents must be served within 14 days of filing.

6.7 The applicant must file an Affidavit of Service within 7 days of service.

What the Court will do next

6.8 Upon filing a Form 8 – Application to register arbitration award together with a copy of the award, the Court must register the award if the respondent does not file a response opposing the registration within 28 days of service. The Court will notify the parties of the registration.

6.9 A registered arbitration award can be enforced as a court order: see regulation 67S of the Family Law Regulations.

6.10 If the respondent files a Response to an Application in an Arbitration within 28 days of service opposing the registration of the award, the Court will fix a date as soon as practicable for the first Court event.

7. Responding to an application to register an arbitration award

7.1 A respondent opposing the registration of an award must file:

  1. a Response to an Application in an Arbitration; and
  2. an affidavit explaining why the award should not be registered.

7.2 A Response to an Application in an Arbitration and any supporting affidavit must be filed within 28 days of service of the Form 8 – Application to register arbitration award.

8. Further information

8.1 For information on how family law proceedings are conducted in the Federal Circuit and Family Court of Australia (FCFCOA), please refer to Central Practice Direction – Family Law Case Management.

8.2 For answers to procedural or operational questions regarding the NAL not addressed in this practice direction, please email the Associate to the NAL Judge at associate.justicewilson@fcfcoa.gov.au.

8.3 Parties should also consult the FCFCOA website at www.fcfcoa.gov.au for relevant information about the NAL.

Useful links

8.4 AIFLAM website – https://www.aiflam.org.au/

 

The Honourable Justice William Alstergren
Chief Justice (Division 1) | Chief Judge (Division 2)
Federal Circuit and Family Court of Australia
Date: 1 September 2021