For legal aid to be granted for a referral to property arbitration the following tests must be satisfied:
Application received from client
Applicants seeking a grant of legal assistance should forward all of the following documents for assessment:
- A completed and signed Legal Aid Queensland application form
- Proof of income and assets (refer to the means test)
- Details of the property pool
Application received from preferred supplier or in-house practitioner
Practitioners seeking a grant of legal assistance must electronically submit an application for aid via the Grants Online system along with the relevant information request.
The following documents are to be retained on file but may be requested by Legal Aid Queensland:
Matters excluded from property arbitration
The following matters are currently excluded from the arbitration program:
- A matter where there is a business involved
- Any matter where a third-party claim has been or is likely to be made
- Where the dispute relates to a discrete issue
- Debt (negative equity)
- Cases where the living arrangements for the children are in dispute
- Cases where the parties have divorced over twelve months ago
- Cases where the parties were in a de-facto relationship and more than 2 years has passed since the date of separation
A third-party claim is a claim that is unsecured and therefore requires the third-party to join the proceedings to protect their interests. An example of a third-party claim is an unsecured loan from one party’s parents during the course of the marriage or relationship.
Discrete issues are not arbitrated. Sometimes the parties are able to agree, with the exception of the value of a specific asset or there may be a factor relevant to the final decision that requires determination. Arbitration is not available for the purpose of determining any single issue; rather the entire matter must be arbitrated.
Debt is excluded, as Legal Aid Queensland would not be able to seek a retrospective contribution where there is negative equity. Also where creditors are involved there is recourse for them through other jurisdictions and this adds complexity to the arbitration process.
Where the children of the relationship are to live will directly affect the award made by the arbitrator. Therefore these issues should be finalised before the matter is referred to arbitration.
In cases where there has been a divorce there is a twelve-month time limit for filing property applications. The parties must demonstrate that they have leave to apply out of time before the matter may be arbitrated.
The arbitrator is approved by Legal Aid Queensland for appointment to the Legal Aid Queensland arbitrator’s panel.
The arbitrator is a qualified legal practitioner who is experienced in family law matters. The arbitrator is required to complete specialist arbitration training run by either a tertiary institution or a recognised professional association of arbitrators, or otherwise approved by Legal Aid Queensland.
Property arbitration process
Arbitration is a process in which the parties in dispute present arguments and evidence to a neutral third party (the arbitrator), who will then make a determination. Determinations made by the arbitrator operate in accordance with law as outlined under the Family Law Act 1975.
The parties provide their submissions in writing. There is no right of physical attendance by the parties at the arbitration; however they have the option of attending upon their solicitor who provides oral submissions by telephone.
Within 28 days of receipt of all the required information the arbitrator will issue a decision, and their reasons, to Legal Aid Queensland, which will then forward the decision to the parties.The parties may incorporate the terms of the decision of the arbitrator in an application for consent orders. Once sealed copies of the orders issue from the Family Court of Australia or Federal Circuit Court of Australia they become enforceable.
Should a party allege an error in the award, they may seek further funding for a slip rule application.Should a party refuse to sign consent orders, the other party may seek funding for registration of the arbitration award.
Separation is final
For the purposes of the property arbitration program, Legal Aid Queensland has an exemption to guidelines that apply to litigation of property matters. There is no requirement for a six-month separation or to have a related family law matter. For referral to the property arbitration program the parties must have been separated for six weeks.
Financially ineligible respondents
Legal Aid Queensland will offer a limited service to respondent parties who are not financially eligible for a grant of aid. This is done on a user pays basis. Respondents must be represented by a solicitor at their own expense and will be asked to pay an ‘up front’ fee to cover the projected costs. This fee will include half the arbitrator’s fees, half a valuation fee and half of any other outlays that are required. Respondents will be advised prior to accepting referral to arbitration of the costs and be required to pay these to Legal Aid Queensland.
In the event that actual fees exceed the ‘up front’ fee no further contribution will be recovered. Upon finalisation of the matter Legal Aid Queensland retains the incurred costs and the remainder will be refunded to the user pays respondent.
Slip rule applications
Occasionally there may be a requirement to refer an arbitral award back to the arbitrator for consideration of an alleged error or proposed amendment with the award.
If a party claims there is an error in an award issued from the property arbitration program, the party must give written notice of the error to Legal Aid Queensland and all other parties. Legal Aid Queensland may rectify an error that appears obvious on reading the award (i.e. correction of a typographical error that does not alter the terms of the award).
Legal Aid Queensland may refer the award back to the arbitrator if we:
- are in doubt whether there has been an error made in the award, or
- believe that an error in an award has, or may have arisen from an accidental slip or omission.
The arbitrator may, after giving each party a reasonable opportunity to be heard, rectify an error referred to them for consideration.
If the arbitrator declines to deal with the matter under the slip rule provisions then the matter may be resolved by negotiation or via a registration application.
In cases where one party refuses to sign consent orders following the issue of an award it may become necessary to initiate proceedings to register the award in accordance with regulation 67Q of the Family Law Regulations.
Grant(s) of aid
The grant of aid that issues for the initial referral to the property arbitration program is:
- PA (for applicants to the arbitration process), or
- PAR (for respondents to the arbitration process)
Extension(s) of aid
Property arbitration extensions
If both parties meet the relevant guidelines and agree to participate in the initial property arbitration program the grant of aid is:
- PA1 (for applicants to the arbitration process), or
- PA1R (for respondents to the arbitration process who are also legally aided)
The following grants of aid may be issued after property arbitration has been granted:
- PA4 (slip rule application where a party alleges an error in the award)
- PA5 (application to register an arbitral award)
- VAL1 (where there is a dispute over the actual value of a property)
- CVY1(conveyancing grant for purchasers)
- CVY2 (conveyancing grant for vendors)
If property arbitration does not proceed, the applicant may seek an extension of aid for representation at court for a dispute about property.
Grants officers will determine whether a matter is appropriate for referral to the property arbitration program.
All applications received from parties who have been invited by Legal Aid Queensland to a participate in a property arbitration process are referred to the property arbitration grants officer for determination. All extensions of aid will be determined by the property arbitration grants officer.
Funding for property settlement disputes will be provided subject to the right to recover a retrospective contribution.
Review of decisions
A decision to refuse legal aid for this type of matter may be appealed to the external review officer (review of decisions).