The shortage of Judges in the Family Court and the Federal Circuit Court has attracted much media attention over the last several months. The persistent delays in appointing replacements for retiring Judges and the increasing numbers of new family law cases are creating significant delays for litigants – in some Courts, parties can now expect a three year wait from the date that they start their case to the time that it is heard.
The resulting legal costs, the impact on children, and the impact on the wellbeing of those involved in protracted family law proceedings all go without saying. But if you cannot resolve your matter through mediation or negotiation, and if the Family Court is becoming an increasingly less viable option, what can you do?
A little known option in the Family Law Act is arbitration. Family Law arbitration is where the parties appoint an independent, legally trained third party, who will hear evidence and arguments from both parties, and then make a decision about the case (known as an award). Although the arbitrator is not a judge, and the process is private, the award is still binding on the parties. To ensure that it has legal force, the award can be registered with the Court.
The Courts will facilitate arbitration by making Consent Orders for parties who are already involved in family law proceedings to attend arbitration – the Court can also make Orders about the conduct of the arbitration itself. If a legal question comes up during arbitration, the parties can take that specific question back to Court for the Judge to decide.
When might you consider arbitration? If you feel your case cannot be resolved by agreement, if you wish to avoid the delays, expense and hostility of a final hearing, and if you are prepared to accept the decision of an independent, qualified, third party, arbitration may provide the resolution that you seek. Our Family Lawyers are collaboratively trained and know many methods to settle your matter outside of court.