The Christmas and New Year season will soon be upon us again. Most of us will have echoed the comment “Where did the year go?” 2016 has been an eventful year both personally and professionally for me. I have celebrated the birth of another healthy daughter, received an unexpected promotion, and managed to keep my sanity amidst what is a hard yet rewarding job. Unfortunately, the strain on our judicial system and the lack of resources and funding for our federal family law system continues to have effects on clients, particularly in circumstances where we are now subject to some of the most extraordinary delays in my 15 years in practice. The Courts are unfortunately so busy and under resourced that this is having deleterious effects on parties who need to have their matters judicially determined.
At the recent national family law conference, the Attorney-General has made it clear that there will be no further funding for the family law system for the life of his government. This means that we are going to need to look at alternatives to the current litigation system.
Thankfully, the Commonwealth Government approved amendments to the Family Law Act this year to provide better access to alternative dispute resolution methods, including arbitration.
Arbitration has been available for use in the family law sphere for a number of years for property settlement matters. However, given the delays experienced in the current system for a matter that requires a judge to make a determination, arbitration may be a better option, particularly where there are little, if any, disputed facts.
The Australian Institute of Family Law Arbitrators and Mediators is currently conducting an information campaign and training arbitrators to enable better access to justice. An arbitration can only occur where both parties agree to arbitrate a dispute and enter into an agreement with an arbitrator that confirms any decision made by the arbitrator is final and binding on the parties. There are limited rights of appeal from an arbitrators decision, however, the use of arbitration may assist where parties might need someone to make a decision about a narrow area of a dispute after which time the parties may be able to resolve the balance of their dispute by either negotiation or mediation. Although some people may have an issue with what is akin to appointing a private judge, I cannot see that our family law system will get any better in the foreseeable future. Having access to highly qualified arbitrators who are experienced in family law can only boost the prospects of resolving matters earlier and in a far quicker, relatively less stressful, and more cost effective way.