Arbitration in Family Law Matters in Australia
It is trite to say that the Family Court system is overburdened with matters, and that delays for litigants in reaching a final determination of their matter is continuing to grow. It is not unheard of that parties may have to wait up to 3 to 5 years for a Trial. There are serious financial and emotional consequences for all involved. A solution is Alternate Dispute Resolution – an umbrella term for processes that do not involve the Court or a Judicial Officer. This article provides some insight on “Arbitration” in the Family Law system.
Arbitration is a confidential dispute resolution process arranged privately in which the parties and their legal representatives appoint an ‘Arbitrator’ who decides the outcome of the dispute. The decision is called an “Award” and it is issued within 28 days and registered with the Family Court. It has the same ‘effect’ as a court Order.
The manner in which the Arbitration is conducted is agreed between all of the parties but is mostly guided by the Arbitrator. In effect it is conducted like a formal Court Hearing – evidence is presented to the Arbitrator and the parties (and any witnesses) are cross-examined on their evidence. It is conducted in strict confidence – the Hearing is in private and is not open to the public and all involved are bound by obligations of confidentiality.
In Arbitration the parties and the legal representatives choose the Arbitrator (often an accomplished Barrister or former Family Court Judge, who they deem best suited to the case and best able to determine the matter in a reliable, independent, and timely fashion. This choice for the parties is not present in a Court process – there is no say about the Judge given.
The main drawcard for Arbitration is that with collaboration the readiness and completion of the dispute can take place in a matter of weeks, not years, which is far more cost effective for the parties and enables the parties to move forward with their lives. It also provides the parties with control over the process – they choose the Arbitrator, the date and the formalities. For these reasons, the process is becoming increasingly more popular as the Family Court system continues to struggle to cope with the number of litigants.
It is important to note that Arbitration can only take place where all parties agree to it. You cannot compel a party to undertake the process. It is also only reserved for financial matters – it cannot decide parenting disputes. Mediation is usually the appropriate forum outside of the Court process for parenting matters.
In our experience Arbitration is often a worthwhile means to resolve some protracted disputes and assists with minimizing the costs and delays otherwise experienced by the parties if their matter continues through the Court process.
To discuss whether this form of dispute resolution is right for you, Dorter Family Lawyers and Mediators are expert family lawyers who specialise in all areas of family law and can assist. Please contact with us on (02) 9929 8840.