The Melbourne Project

The Law Council of Australia has announced a new initiative to encourage parties involved in family law disputes to consider arbitration and mediation as an alternative to court. The Melbourne Project, an initiative of the Family Law Section of the Law Council and the Australian Institute of Family Law Arbitrators and Mediators, with the support of the Family Court, has been created to assist the Family Court in dealing with a backlog of cases.

What is the Melbourne Project?

The Melbourne Project is a three-tier arbitration model. The project involves qualified arbitrators conducting arbitrations on a fixed-fee basis. The arbitrator will make an award within 28 days of the arbitration hearing finishing.

There are three levels of fees. It is the role of the arbitrator to determine which band a case belongs to. The fees are as follows:

The composite fee includes all preparation (including preliminary meetings), one day of hearing and the award. If the hearing exceeds one day, an additional daily fee will be charged for the extra days.

What is arbitration?

Arbitration is defined in s 10L of the Family Law Act 1975 (Cth) as:

"a process (other than a judicial process) in which parties to a dispute present arguments and evidence to an arbitrator, who makes a determination to resolve the issue."

• Section 10L specifies two different types of arbitration:

  Section 13E arbitration is the arbitration of Pt VIII proceedings carried out as a result of an order made under s 13E. Pt VIII proceeding concern property, spousal maintenance and maintenance agreements. Section 13E arbitration "can only be ordered where there are proceedings on foot a Court is exercising jurisdiction under Part VIII" [1].

• Relevant property or financial arbitration is the arbitration (other than s 13E arbitration) of:
  1. Pt VIII (property, spousal maintenance and maintenance agreements) proceedings, Pt VIIIA (financial agreements) proceedings, Pt VIIIB (superannuation) and s 106A (execution of instruments) proceedings; or
  2. any part arising in such proceedings; or
  3. any matter arising in such proceedings; or
  4. a dispute about a matter with respect to which such proceeding could be instituted. Relevant property or financial arbitration can be conducted regardless of whether proceedings are on foot or not [2].

The duties of the arbitrator include determining the issues in accordance with the Family Law Act, ensuring procedural fairness, and making the award (which involves giving written reasons and setting out findings of fact). If the arbitration is court-referred then the arbitrator also has a duty to inform the court that the arbitration has ended and that an award has been made [3].

Advantages of Arbitration

As has been noted, the Melbourne Project has been established to help the Family Court in dealing with the backlog of cases. The benefits associated with arbitration include the fact that there is often speedier resolution of cases and court lists are not clogged with unnecessary cases, which in turn allows the court's time to be better utilised [4].

Arbitration is also advantageous to the individual parties involved in the proceedings. In addition to benefits listed above, arbitration allows for greater flexibility and informality than court hearings, the arbitration can be held at a time and a place agreed between the individual parties and the arbitrator, the parties can control the arbitration timetable, there is a prompt and binding result and the costs are fixed.

In launching the Melbourne Project, Law Council of Australia President Ross Ray QC said "Court processes can be expensive and time consuming because of the formalities which have to be complied with. Arbitration offers a simpler, more flexible process which gets at the heart of the issues in dispute and provides a speedy decision".

Family Law Section, Family Law Arbitration The Melbourne Project,

[2]Family Law Section, Family Law Arbitration The Melbourne Project,

[3]Kennedy I, "Family Law Arbitration - The Melbourne Project", October 2007,

[4]Kennedy I, "Family Law Arbitration - The Melbourne Project", October 2007,