FAMILY LAW
Court establishes the Family Law Property Arbitration List JUDGE JOE HARMAN, FEDERAL CIRCUIT COURT OF AUSTRALIA, AND MATTHEW SHEPHERD, ACCREDITED FAMILY LAW SPECIALIST
T
he Family Court of Australia and the Federal Circuit Court of Australia have established a new specialist National Arbitration List. The list will be managed by dedicated National Arbitration Judges being Justice Wilson in the Family Court, Judge Harman in the Federal Circuit Court and Justice Strickland being the coordinating Appeals Judge for Arbitration Appeals. All matters referred to arbitration will be placed in the National Arbitration List. Any application for interim orders sought to facilitate the Arbitration by arbitrators or parties will be dealt with by the relevant National Arbitration Judge electronically. Applications for registration of arbitral awards issued by Arbitrators will be dealt with by the same National Arbitration Judge. Similarly, applications for review of an Arbitral Award will be conducted by the relevant National Arbitration Judge. Chief Justice Alstergren said “The Courts have long supported the use of alternative dispute resolution as a quicker and more affordable option for litigants to resolve their disputes, rather than continuing to trial. The introduction of the Arbitration List will ensure consistency and timeliness and the determination of such applications will be given considered priority. While arbitration has traditionally and commonly been used in commercial litigation, our Courts are very keen to support the wider use of arbitration in family law for property matters.”
UPTAKE OF FAMILY LAW PROPERTY ARBITRATION Each author has undertaken separate research since the 2016 arbitration amendments to the Family Law Act and Regulations. An anonymous survey of arbitrators
conducted by Matthew Shepherd identified that at February, 2019: a. No less than 107 arbitrations had been completed by 62 different arbitrators. Responses were not received from all arbitrators. b. There were court proceedings underway in 80 of the 107 cases and none in the remaining 27. The survey did not identify whether proceedings were in the Family Court or the Federal Circuit Court. c. In 78 cases, the arbitrator issued an arbitral award, and the remaining 29 cases were settled during the arbitration process. d. 26 cases were heard “off the papers” without any formal hearing; 22 involved a short hearing (one day or less) for submissions but no oral evidence or cross-examination; and 50 involved oral evidence, crossexamination and submissions. e. 65% involved a hearing of one day or less. A few involved hearings of two or three days, with one going into a fifth day. The average hearing length was 1.4 days. f. Arbitral awards were issued by the arbitrators within seven days or less of the hearing in 32% of cases, between eight to fourteen days in 44%, and between fifteen and twenty-eight days in 24% g. Time taken from the commencement of the 107 arbitrations (defined as the signing of the agreement to arbitrate) to the issue of the award was more variable. 28% of cases took four weeks or less, 26% took between four and eight weeks, 23% took between two and three months, 16% took between three to four months and a few took over four months.
At 31 January, 2020, as best as can be ascertained, not less than 141 cases had been referred to arbitration by the Judges of the Federal Circuit Court.
ARBITRATION – A FLEXIBLE DISPUTE RESOLUTION OPTION Arbitration is private and confidential. It occurs away from court and closed to the public. Arbitral awards are not published. Arbitration happens as quickly as the diaries of clients, lawyers and the arbitrator allow. It is not delayed by overburdened court lists. Time from the commencement of the arbitration process to issue of the arbitral award is significantly less than the waiting time for final hearings in court. Parties can fix a date for an arbitral hearing and know it will proceed on that day. They avoid the risk of a Court hearing being deferred due to the listing of other matters – especially parenting matters which are likely to be given priority by the Court. Arbitration hearings can be flexibly designed including: • “Off the papers” without a hearing. • Short hearing for submissions. • Full hearing with cross-examination which might be limited to agreed issues and duration. Parties can agree on some matters and seek an arbitral award in respect of discrete issues. For example, parties might be able to agree on the balance sheet and whom should retain the home but be unable to agree on a percentage division and whether the superannuation should be split or not. The flexibility and speed of arbitration can result in lower costs for clients. Costs of updating pleadings or valuations due to court delays and adjournments are avoided. June 2020 THE BULLETIN
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