The growing pressure on the Federal Circuit Court of Australia and Family Court is a matter which has been widely reported of late. Presently, family law matters are often taking up to two years to be allocated a trial. Various sectors of the community from domestic violence victim Rosie Batty to politician Pauline Hanson, have recently expressed an opinion on what needs to be done to ‘fix’ the family law system and alleviate the pressure on the Courts. Now, helpfully, the Honourable Chief Justice Diana Bryant has expressed her own view on one aspect of the matter.
Under the Family Law Act 1975 the Chief Justice’s role is to ensure the ‘orderly and expeditious discharge of the business of the Court’. Alleviating the long wait times in the Court system is therefore a matter of significant importance for the Chief Justice. Interestingly, the Chief Justice has expressed a view for certain types of disputes to be dealt with in a forum other than the Family Court. In a recent interview with the Sydney Morning Herald, Chief Justice Bryant said “We have to recalibrate what we mean by ‘access to justice’. We need to remove the cases from the system that can be dealt with in another way.” Arbitration for modest property settlement matters is one such example Chief Justice Bryant cited.
Those who have been through the Family Law process will be familiar with the likes of family dispute resolution (FDR) and mediation but many are misinformed or uninformed about arbitration. Arbitration is when a third party (usually a Barrister or retired Judge) is engaged to hear the evidence from both sides and make a decision which is legally binding and enforceable. In effect an arbitrator stands in the place of a Judge. Sometimes arbitration can be done ‘on the papers’ i.e. without the need for a formal hearing and other times it is still necessary to have a hearing or trial before the arbitrator so that he or she can ‘test’ the evidence and make their decision. It is up to individuals to decide on who will arbitrate their matter and the specifics of the process. More importantly the process usually takes only about one to two months as opposed to many months or years as is common with court matters. Not only does arbitration save time but it can also significantly minimise legal costs.
Currently, arbitration can only been used in property settlement and spousal maintenance matters but the former Family Law Council head Professor Patrick Parkinson suggests that arbitration could also be used in parenting matters, as it is in other parts of the world.
Jones Mitchell Lawyers is experienced in assisting clients to resolve their matters though the arbitration process. The firm’s senior partner, Warwick Jones, is also a qualified arbitrator. For more information about arbitration, please read our FAQ’s or give our office a call on 07 5591 5333.