On 16 April 2020 the Chief Justice of the Family Court and Federal Circuit Court of Australia announced the establishment of a new specialist list in each Court, to be known as the National Arbitration List.
Arbitration has been possible in property cases under the under the Family Law Act for over two decades. However the use of this alternative dispute resolution process has historically been almost non existent. In 2016 the Family Law Amendment (Arbitration and Other Measures) Rules 2015 and an amendment to the Family Law Rules 2004 were introduced to encourage consideration of arbitration, but again, the process gained little popularity.
There are now long delays to obtain a final hearing date for property matters in the Family Law Courts. Prior to COVID -19 it could take twelve months to three years to obtain hearing dates. As matters take longer, they generally become more costly. The limitations with litigation arising from COVID-19 can only exacerbate this issue. Arbitration, with the consequence of obtaining a binding outcome, must now be considered as a viable alternative to going to trial through the Family Law Courts if mediation and negotiation cannot resolve a dispute.
Arbitration, as defined by s10L of the Family Law Act 1975, refers to the process where parties present their matters to an independent arbitrator. The process is voluntary and the arbitrator and process agreed upon by all involved. The process is designed to afford parties more control over obtaining a binding decision outside of court. If your matter is already being litigated, you can still access the process in relation to some or all issues outstanding. Pursuant to section 13 H of the Family Law Act, once registered, an arbitral decision takes effect as if it were a decree of the court. Review of the decision is on a point of law only.
The new National List will operate as an electronic list in each Court with specific Judges designated to manage the lists and applications arising therein.
As a firm where Arbitration has traditionally been used in our Commercial litigation matters, Chamberlains supports the wider use of arbitration in family law for property matters to achieve cost effective and expeditious outcomes for our clients.