Why wait? Option to arbitrate family law cases in a COVID crisis

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By Elle McDermott, Senior Associate

The Family Court of Australia and Federal Circuit Court of Australia have recently announced the implementation of a national specialist Court list designed to manage and assist family law cases that have agreed to proceed to arbitration.

Arbitration has been used extensively in commercial and construction disputes for some time and it is now an emerging area in Family Law offering parties the ability to have their dispute privately determined to avoid lengthy court delays.

The delays in the Family Court system have been heavily publicised and the impacts of COVID-19 have placed increased pressure on an already overwhelmed Court system.

The Court is currently operating at a reduced pace, reserving resources for the most urgent cases and conducting matters electronically where possible.  We have already observed a large number of financial cases in the Court system being adjourned and sitting in abeyance seemingly waiting until the world returns to normal.

Arbitration may offer welcome relief to family law clients who wish to have their case determined in an expeditious and cost effective manner to enable them to move on with their lives.

In our experience, a matter proceeding through arbitration can be finalised within 12 weeks once an agreement is reached by the parties to arbitrate.  That can be compared to proceedings in the Family Court system where the process can take anywhere between 1 to 3 years, or even longer.

The basics of arbitration can be summarised as follows:

  1. arbitration is a voluntary process and must be agreed to by both parties;
  2. only disputes surrounding financial matters can be arbitrated;
  3. the parties ordinarily share the cost of the arbitrator’s costs and room hire to conduct the arbitration, although this can be a matter for negotiation;
  4. the parties agree upon an arbitrator;
  5. qualified arbitrators of family law disputes include retired Judges, experienced family law practitioners, experienced Counsel and mediators;
  6. unless otherwise agreed, the arbitration process operates in the same manner as the court process;
  7. an arbitrator will hand down an ‘award’ normally within weeks of the conclusion of the arbitration which is registered with the Court and becomes binding and enforceable having the same effect as an Order of the Court; and
  8. an arbitration ‘award’ can be appealed in the same way as a judgment handed down by a Judge can be appealed.

Importantly, arbitration gives the parties an ability to control the process which they are not otherwise afforded in the Court system.  It provides the parties with the opportunity to select their timeframe; their Judge and how they wish to conduct the Court hearing.

The Arbitration List is expected to streamline the arbitration process with a National Arbitration Judge being appointed to hear matters electronically to:

  1. make interim orders sought by an arbitrator or one of the parties to facilitate the arbitration process; and
  2. register arbitration awards or hear objections to an award being registered.

We have extensive experience in arbitration at Mills Oakley including advising clients as to the suitability of arbitration for their matter.

For further information, please do not hesitate to contact us.

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