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Can you withdraw consent to arbitrate?

With the pressure on the family court system – both before the impact of Covid-19 and after – the Courts are continuing to press for the use of alternative dispute resolution options; with increasing emphasis on arbitration.

In a recent case (Palgrove & Palgrove) the Court looked at whether arbitration could proceed when one party was making an allegation that the other party had perpetrated significant family violence – such that they felt unable to be in the same room as the alleged perpetrator.

Orders had been made – by consent – for the matter to be referred to arbitration. Since the referral to arbitration the parties engaged in the selection of an arbitrator and executed an arbitration agreement. But an issue arose in relation to whether there was a need for the parties to be in the same location for the arbitration to take place. Ultimately an application was made to the Court to discharge the Order referring the matter to arbitration.

The Court found that it is arguable that disputes are not arbitrable if the dispute will involve a finding of fact relating to a matter in which there is a public interest such as “… allegations of criminal conduct. This may include allegations of family violence, whether prosecuted as a criminal offence or otherwise.” But the Court found that what was required was some clear and specific direction as to how the matter will proceed through arbitration rather than bringing the matter back into the Court process.

This was partly because the parties had already expended money on the arbitration process and partly because of the significant delay the parties would face if they came back into the Court process (another 18 months plus).

Ultimately the Court decided that it should use its powers to facilitate the arbitration in a prescriptive fashion by finding that the wife did not have to be in the same room or building as the husband during the arbitration. This case was determined just as Covid-19 starting impacted us here in Australia – so it something of a throw-back to those ‘simpler’ times.

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