COURTS (MEDIATION AND ARBITRATION) ACT 1991 No. 113, 1991
COURTS (MEDIATION AND ARBITRATION) ACT 1991 No. 113 of 1991 - TABLE OF
PROVISIONS
TABLE OF PROVISIONS
PART 1 - INTRODUCTORY
Section
1. Short title
2. Commencement
PART 2 - AMENDMENTS OF THE FAMILY LAW ACT 1975
3. Principal Act
4. Interpretation
5. Insertion of new Part:
PART IIIA - MEDIATION AND ARBITRATION
Division 1 - Mediation
19A. Request for mediation
19B. Court may refer matters for mediation
19C. Admissions made to mediators
Division 2 - Arbitration
19D. Court may refer proceedings to arbitration
19E. Private arbitration
19F. Review of awards made in private arbitration
19G. Review of other awards
Division 3 - Miscellaneous
19H. Assessors
19J. Advice about mediation and arbitration
19K. Oath or affirmation by approved mediator
19L. Oath or affirmation by approved arbitrator
19M. Protection of mediators and arbitrators
6. Personnel other than the Chief Executive Officer
7. Interpretation
8. Rules of Court
9. Regulations
PART 3 - AMENDMENTS OF THE FEDERAL COURT OF AUSTRALIA ACT 1976
10. Principal Act
11. Insertion of new sections:
53A. Mediation and arbitration
53B. Admissions made to mediators
53C. Protection of mediators and arbitrators
12. Arbitration awards
13. Rules of Court
COURTS (MEDIATION AND ARBITRATION) ACT 1991 No. 113 of 1991 - LONG TITLE
An Act relating to mediation and arbitration under the Family
Law Act 1975 and the Federal Court of Australia Act 1976, and
for related purposes
COURTS (MEDIATION AND ARBITRATION) ACT 1991 No. 113 of 1991 - PART 1
PART 1 - INTRODUCTORY
COURTS (MEDIATION AND ARBITRATION) ACT 1991 No. 113 of 1991 - SECT 1
Short title
(Assented to 27 June 1991)
1. This Act may be cited as the Courts (Mediation and Arbitration) Act 1991.
(Minister's second reading speech made in-
House of Representatives on 30 May 1991
Senate on 6 June 1991)
COURTS (MEDIATION AND ARBITRATION) ACT 1991 No. 113 of 1991 - SECT 2
Commencement
2. (1) Sections 1 and 2 commence on the day on which this Act receives the
Royal Assent.
(2) Subject to subsection (3), the remaining provisions of this Act commence
on a day or days to be fixed by Proclamation.
(3) If a provision referred to in subsection (2) does not commence within
the period of 6 months starting on the day on which this Act receives the
Royal Assent, it commences on the first day after the end of that period.
COURTS (MEDIATION AND ARBITRATION) ACT 1991 No. 113 of 1991 - PART 2
PART 2 - AMENDMENTS OF THE FAMILY LAW ACT 1975
COURTS (MEDIATION AND ARBITRATION) ACT 1991 No. 113 of 1991 - SECT 3
Principal Act
3. In this Part, "Principal Act" means the Family Law Act 1975.*1*
*1* No. 53, 1975, as amended. For previous amendments see Nos. 63, 95 and 209,
1976; No. 102, 1977; No. 23, 1979; No. 2 1982; Nos. 67 and 72, 1983; Nos. 63,
72 and 165, 1984; Nos. 65, 166 and 193 of 1985; Nos. 76 and 168, 1986; Nos.
141 and 181, 1987; Nos. 8, 99 and 120, 1988; Nos. 124, 157 and 182, 1989; and
Nos. 115 and 138, 1990.
COURTS (MEDIATION AND ARBITRATION) ACT 1991 No. 113 of 1991 - SECT 4
Interpretation
4. Section 4 of the Principal Act is amended by inserting in subsection (1)
the following definitions:
" `appropriate officer', when used in Part IIIA in relation to the Family
Court, means:
(a) the Chief Executive Officer of the Family Court; or
(b) any other officer of the Family Court specified in writing by the Chief
Executive Officer for the purposes of this definition;
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`approved arbitrator' means an arbitrator approved under the regulations;
`approved mediator' means a mediator approved under the regulations;
`Part VIII proceedings' means proceedings under Part VIII for orders with
respect to spousal maintenance or the property of parties to a marriage, but
does not include any proceedings specified in the regulations for the purposes
of this definition;
`prescribed proceedings' means:
(a) proceedings for principal relief; or
(b) proceedings in relation to concurrent, pending or completed proceedings
for principal relief;
`private arbitration' means arbitration by an arbitrator specified by the
regulations for the purposes of this definition, other than arbitration
carried out as a result of an order made under section 19D;".
COURTS (MEDIATION AND ARBITRATION) ACT 1991 No. 113 of 1991 - SECT 5
5. After Part III of the Principal Act the following Part is inserted:
"PART IIIA - MEDIATION AND ARBITRATION
"Division 1 - Mediation
Request for mediation
"19A. (1) A person who is:
(a) the parent or adoptive parent of a child; or
(b) a child; or
(c) a party to a marriage;
and who is not a party to proceedings under this Act, may file in the Family
Court, or in a Family Court of a State, a notice asking for the help of a
mediator in settling a dispute to which the person is a party.
"(2) Where a notice is filed in a court:
(a) the notice must be dealt with in accordance with the Rules of Court;
and
(b) if a mediation service is available at the Registry of the court and
the dispute is one that, under the Rules of Court, may be mediated, the
appropriate officer of the court must make arrangements for an approved
mediator to mediate the dispute in accordance with the Rules of Court.
"(3) In this section:
`dispute' means a dispute about a matter with respect to which proceedings
(other than prescribed proceedings) could be instituted under this Act.
Court may refer matters for mediation
"19B. (1) Subject to the Rules of Court, the Family Court or a Family Court
of a State, may, with the consent of the parties to any proceedings before it
under this Act (other than prescribed proceedings), make an order referring
any or all of the matters in dispute in the proceedings for mediation by an
approved mediator.
"(2) Where a court makes an order under subsection (1), it may, if
necessary, adjourn the proceedings and may make such additional orders as it
thinks appropriate to facilitate the effective conduct of the mediation.
"(3) Where a court makes an order under subsection (1), the appropriate
officer of the court must make arrangements for an approved mediator to
mediate the relevant disputed matter in accordance with the Rules of Court.
"(4) Where:
(a) a court makes an order under subsection (1) in relation to any matter
in dispute in proceedings before it; and
(b) a party to the proceedings files a notice in the court that the
mediation of the matter has ended;
the court may make such orders, or give such directions, as it thinks
appropriate in relation to the proceedings.
Admissions made to mediators
"19C. Evidence of anything said, or of any admission made, at a conference
conducted by an approved mediator, acting as such a mediator, is not
admissible:
(a) in any court (whether exercising federal jurisdiction or not); or
(b) in any proceedings before a person authorised by a law of the
Commonwealth or of a State or Territory, or by the consent of the parties, to
hear evidence.
"Division 2 - Arbitration
Court may refer proceedings to arbitration
"19D. (1) In any Part VIII proceedings the court may, subject to the Rules
of Court, make an order referring the proceedings, or any part of them, or any
matter arising in them, to an approved arbitrator for arbitration in
accordance with the Rules of Court.
"(2) A court may make an order under subsection (1) with or without the
consent of the parties.
"(3) Where a court makes an order under subsection (1), it may, if
necessary, adjourn the proceedings and may make such additional orders as it
thinks appropriate to facilitate the effective conduct of the arbitration.
"(4) Where a court makes an order under subsection (1), the arbitration must
be carried out by the approved arbitrator in accordance with the Rules of
Court.
"(5) A party to an award in an arbitration carried out as a result of an
order under this section may register the award, in accordance with the Rules
of Court, in the court that made that order and the award, when so registered,
has effect as if it were a decree made by that court.
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Private arbitration
"19E. (1) A court having jurisdiction under this Act may, on application by
a party to the private arbitration of a dispute, make such orders as the court
thinks appropriate to facilitate the effective conduct of the arbitration.
"(2) A party to an award made in a private arbitration of a dispute may
register the award, in accordance with the Rules of Court, in a court having
jurisdiction under this Act and the award, when so registered, has effect as
if it were a decree made by that court.
"(3) In this section: `dispute' means:
(a) Part VIII proceedings; or
(b) any part of such proceedings; or
(c) any matter arising in such proceedings; or
(d) a dispute about a matter with respect to which such proceedings could
be instituted.
Review of awards made in private arbitration
"19F. (1) A party to a registered award made in private arbitration may
apply to a Full Court of the Family Court for review of the award on questions
of law.
"(2) On a review of an award under this section, the court may:
(a) determine all questions of law arising in relation to the arbitration;
and
(b) make such decrees as it thinks appropriate, including a decree
affirming, reversing or varying the award.
Review of other awards
"19G. (1) A party to a registered award made in arbitration carried out as a
result of an order made under subsection 19D (1) may apply to a single Judge
of the Family Court for review of the award.
"(2) A Judge who reviews an award under this section must do so by rehearing
the matters to which the award relates and:
(a) must determine, as if for the first time, all questions of fact and law
arising in relation to the arbitration; and
(b) may, by decree, either confirm the award or make such other award as
the Judge thinks appropriate.
"Division 3 - Miscellaneous
Assessors
"19H. In any proceedings under this Act (other than prescribed proceedings),
the court may, in accordance with the Rules of Court, call in the aid of an
assessor to assist it in the hearing and determination of the proceedings, or
any part of them or any matter arising under them.
Advice about mediation and arbitration
"19J. (1) The appropriate officer of the Family Court or of a Family Court
of a State must, as far as practicable, on request by a party to a marriage or
to proceedings under this Act, advise the party about any mediation or
arbitration facilities available in the court and how those facilities are
made available.
"(2) The Rules of Court must provide for persons who propose to institute
proceedings under this Act, and (in appropriate cases) their spouses, and
other interested persons, to be given a document setting out particulars of
any mediation and arbitration facilities available in the Family Court and
elsewhere.
Oath or affirmation by approved mediator
"19K. An approved mediator must, before starting to perform the functions of
such a mediator, make an oath or affirmation of secrecy in accordance with the
prescribed form before a person authorised under a law of the Commonwealth, or
of a State or Territory, to take affidavits.
Oath or affirmation by approved arbitrator
"19L. An approved arbitrator must, before starting to perform the functions
of such an arbitrator, make an oath or affirmation in accordance with the
prescribed form before a person authorised under a law of the Commonwealth, or
of a State or Territory, to take affidavits.
Protection of mediators and arbitrators
"19M. An approved mediator, an approved arbitrator, or an arbitrator who
carries out a private arbitration, has, in performing the functions of such a
mediator or arbitrator, the same protection and immunity as a Judge of the
Family Court has in performing the functions of such a Judge.".
COURTS (MEDIATION AND ARBITRATION) ACT 1991 No. 113 of 1991 - SECT 6
Personnel other than the Chief Executive Officer
6. Section 38N of the Principal Act is amended by inserting after paragraph
(1) (d) the following paragraph:
"(da) a Principal Director of Mediation;".
COURTS (MEDIATION AND ARBITRATION) ACT 1991 No. 113 of 1991 - SECT 7
Interpretation
7. Section 60 of the Principal Act is amended by inserting after paragraph
(a) of the definition of "member of the Court personnel" the following
paragraphs:
"(aa) an approved mediator; or
(ab) an approved arbitrator; or".
COURTS (MEDIATION AND ARBITRATION) ACT 1991 No. 113 of 1991 - SECT 8
Rules of Court
8. Section 123 of the Principal Act is amended by inserting after paragraph
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(1) (s) the following paragraphs:
"(sa) prescribing the functions and duties of assessors and of approved
mediators and approved arbitrators;
(sb) providing for and in relation to the making of applications under this
Act for mediation or arbitration and for orders under section 19E;
(sc) prescribing the disputes, proceedings or matters that may or may not
be mediated or arbitrated under this Act;
(sd) providing for and in relation to:
(i) the procedures to be followed by an approved mediator or an approved
arbitrator in mediating or arbitrating a dispute, proceeding or matter under
this Act; and
(ii) the attendance by persons at conferences conducted by approved
mediators and approved arbitrators for the purposes of mediating or
arbitrating a dispute, proceeding or matter under this Act; and
(iii) the procedure to be followed when a mediation or arbitration ends,
both where it has resulted in an agreement or award and where it has not;
(se) prescribing matters relating to the costs of mediation and arbitration
by approved mediators and approved arbitrators and the assessment or taxation
of those costs;
(sf) providing for and in relation to:
(i) the registration of awards under section 19D or 19E; and
(ii) the time and manner of making applications for review of registered
awards under section 19F or 19G;".
COURTS (MEDIATION AND ARBITRATION) ACT 1991 No. 113 of 1991 - SECT 9
Regulations
9. Section 125 of the Principal Act is amended by omitting paragraph (1) (c)
and substituting the following paragraphs:
"(ba) providing for and in relation to the approval of mediators and
arbitrators;
(c) prescribing court fees to be payable in respect of:
(i) proceedings under this Act; and
(ii) the arbitration by an approved arbitrator of a dispute, proceeding or
matter carried out as a result of an order made under subsection 19D (1);".
COURTS (MEDIATION AND ARBITRATION) ACT 1991 No. 113 of 1991 - PART 3
PART 3 - AMENDMENTS OF THE FEDERAL COURT OF AUSTRALIA ACT 1976
COURTS (MEDIATION AND ARBITRATION) ACT 1991 No. 113 of 1991 - SECT 10
Principal Act
10. In this Part, "Principal Act" means the Federal Court of Australia Act
1976.*2*
*2* No. 156, 1976, as amended. For previous amendments see Nos. 19 and 87,
1979; No. 61, 1981; No. 26, 1982; No. 91, 1983; Nos. 11, 72 and 165, 1984;
Nos. 65 and 193, 1985; No. 76, 1986; No. 141, 1987; Nos. 8, 99 and 120, 1988;
No. 157, 1989; and Nos. 11, 70 and 115, 1990.
COURTS (MEDIATION AND ARBITRATION) ACT 1991 No. 113 of 1991 - SECT 11
11. After section 53 of the Principal Act the following sections are
inserted:
Mediation and arbitration
"53A. Subject to the Rules of Court, the Court may, with the consent of the
parties to proceedings in the Court, by order refer the proceedings, or any
part of them or any matter arising out of them, to a mediator or an arbitrator
for mediation or arbitration, as the case may be, in accordance with the Rules
of Court.
Admissions made to mediators
"53B. Evidence of anything said, or of any admission made, at a conference
conducted by a mediator in the course of mediating anything referred under
section 53A is not admissible:
(a) in any court (whether exercising federal jurisdiction or not); or
(b) in any proceedings before a person authorised by a law of the
Commonwealth or of a State or Territory, or by the consent of the parties, to
hear evidence.
Protection of mediators and arbitrators
"53C. A mediator or an arbitrator has, in mediating or arbitrating anything
referred under section 53A, the same protection and immunity as a Judge has in
performing the functions of a Judge.".
COURTS (MEDIATION AND ARBITRATION) ACT 1991 No. 113 of 1991 - SECT 12
Arbitration awards
12. Section 54 of the Principal Act is amended by inserting in subsection
(1) "(whether carried out under an order made under section 53A or otherwise)"
after "arbitration".
COURTS (MEDIATION AND ARBITRATION) ACT 1991 No. 113 of 1991 - SECT 13
Rules of Court
13. Section 59 of the Principal Act is amended by adding at the end of
subsection (2) the following word and paragraphs:
"; and (zf) the referral of any proceedings in the Court, or any part of
such proceedings or any matters arising out of such proceedings, to a mediator
or an arbitrator for mediation or arbitration, as the case may be; and
(zg) the procedures to be followed by a mediator or an arbitrator in
mediating or arbitrating anything referred for mediation or arbitration under
this Act; and (zh) the attendance by persons at conferences conducted by
mediators or arbitrators for the purposes of mediating or arbitrating anything
so referred; and
(zi) the procedure when any such mediation or arbitration ends, both where
it has resulted in an agreement or award and where it has not.".