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Procedure – withdrawal of consent to arbitration due to alleged family violence

In Palgrove [2020] FCCA 846 (27 March 2020) a financial case was referred in 2019 to arbitration by consent pursuant to s13E of the Family Law Act.

Before the court was the wife’s application for the discharge of that referral due to her inability to be in the same place as the husband after being subjected to serious violence by him.

Judge Harman said (from [30]):

“…[T]he parties are relatively agreed in their position that the referral to arbitration should be discharged and the parties instead referred to a conciliation conference…

[31] I do not intend to take that path, even though both parties consent.

[32] As discussed in Loomis & Pattison [2020] FCCA 345…the Court should be loath to interfere in the arbitration process, other than its facilitation and support once it is ordered. …

[33] The outcome the parties desire to achieve can be achieved through the prescriptive order I have referred to [for arbitration by video]. (…)

[35] Whilst consent is purported to be withdrawn, I am not satisfied that I should simply accept that position and return the matter to the Court’s jurisdiction. There are a number of reasons for that. Firstly, the arbitrator is clearly seized of the matter. The arbitration has commenced. …

[36] It would be more cost effective for the arbitration to proceed…by video, subject to the dispute remaining arbitrable [discussed at [15]] and both parties being sufficiently supported in the process to feel safe.

[37] Secondly, the delay that these parties will face, if the matter returns before the Court, is extreme. At present and as a consequence not only of response to the pandemic, but as a consequence of an underlying chronic absence of resourcing, this case could not and would not be heard until 2021 at the earliest, if even then. That disadvantage to the parties, when it can be cured through a prescriptive order as to how the arbitral process should proceed and thus that disadvantage avoided, should play some significant role in determining the issue.”

The court dismissed the wife’s application for dismissal of the referral and made prescriptive orders for the conduct of the arbitration by video.

Robert Glade-Wright is the founder and senior editor of The Family Law Book, a one-volume loose-leaf and online family law service (thefamilylawbook.com.au). He is assisted by Queensland lawyer Craig Nicol, who is a QLS Accredited Specialist (family law).

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