Don’s Family Law Blog

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Arbitration has been a buzz word for some time in Australian Family Law circles.  The Legal Aid Office (Queensland) has been at the forefront in Australia in using arbitration to determine small property pool disputes.  These arbitrations have numbered in the hundreds and are conducted on the papers.

Arbitration has not, however, taken off elsewhere.  Many solicitors have proposed it, but for one reason or another arbitrations just have not happened.

Happily, yesterday an arbitration hearing did take place in Brisbane.  Experienced Family Law barrister, Jenny Hogan, was selected by the parties.  Other barristers, Mark Sayers and Cameron Dick (instructed by Barry & Nilsson) represented the parties.

After a day of cross-examination and submissions the arbitrator undertook to deliver the outcome within 14 days.

A good day for Family Law.

The determining, regulating and enforcing client/solicitor costs has been handed over by the Family Court to the State systems in each State.

For as long as I can remember the Court’s oversight of the costs system was over-regulated and, in setting a scale of costs, something that the Court’s judges were not qualified to do.

As to the new system, we shall see.

 By way of an update on a previous post on this blog (25 June 2008),  the bill to bring defacto property matters under the jurisdiction of the Family Court of Australia was introduced to the House of Representatives on 25 June 2008.  A report of the Senate Legal and Constitutional Affairs Committee is due to be completed on 27 August 2008.

Once the bill is enacted parties to a defacto relationship, defined as 2 people (of the same sex or opposite sex) that are living together as a couple on a genuine domestic basis, can bring applications for property adjustment and/or maintenance.  The court is able to make a declaration that a defacto relationship exists, the length of the relationship and what contributions have been made, regardless of whether one of the parties is legally married to another person.

The new legislation will apply to those couples whose relationship breaks down after the change to law is made.  Applications can be made if:

(a)                    The relationship was registered under state or territory law; or

(b)                    there is a child; or

(c)                    the relationship has endured for 2 or more years; or

(d)                    substantial contributions were made and failure to make an order would result in a serious injustice.

Under the new laws the court may consider orders for maintenance which was previously not available under state and territory laws.  The obligation to maintain a former partner will apply only if it is determined that the applicant for maintenance is unable to adequately support themselves due to their obligations to care for a child of the relationship, or for other reasons such as their state of health or age.  The ability of the payer to reasonable meet any maintenance obligation is also considered.

When deciding issues of property adjustment the court will apply essentially the same weighting to  contributions and future needs factors as is presently applied to married couples.

The reforms are long overdue.  I wonder, however, if introducing “spouse” maintenance to defacto couples is a stretch too far.