By Julia Vitebsky

20 October 2020

On 6 April 2020, the Family Court of Australia and Federal Circuit Court of Australia announced the establishment of a new specialist National Arbitration List.

This is an electronic list in each Court which is managed by specific Judges depending on the nature of the application. It has been confirmed that:

  1. Justice Josh Wilson will be the National Arbitration Judge for the Family Court of Australia;
  1. Judge Joe Harman will be the National Arbitration Judge for the Federal Circuit Court of Australia; and
  1. Justice Strickland will be the coordinating Appeals Judge for Arbitration Appeals in the Appeal Division of the Family Court of Australia.

What is Arbitration?

Arbitration is an alternative dispute resolution procedure whereby an independent third party (arbitrator) hears the issues in dispute between the parties, considers the relevant evidence, and decides the outcome of the case on a final basis. The arbitrator sits in the place of the judge.

Importantly, an arbitrator may be appointed to hear a variety of different family law matters, and may determine the entirety of the matter or a discrete aspect of the matter. However this list is not available for parenting or child support proceedings.

How does this List work?

There are two ways in which your matter can be arbitrated, namely:

  1. A Court ordered arbitration; or
  1. A private arbitration.

A combination of both is also possible.

If the court orders an arbitration, similarly to a court ordered mediation, the parties must sign an arbitration agreement, provide the relevant documents to the arbitrator, pay the arbitrators fee and provide a detailed background of the matter prior to the arbitration.

Alternatively, if the parties agree to have a private arbitration, it will be at the parties’ discretion to make those arrangements.

Once the matter is referred into the List, an Arbitration List Judge will be allocated to the matter to manage the case and the parties will be notified accordingly. The matter will then be listed before the Judge for a mention approximately four months after being allocated the file. A mention is the first time that the matter is brought before the Judge. At this time, the Judge will usually give directions to the parties regarding the timetable for the matter and make orders as to the appropriate procedural steps which must be undertaken by each party.

The court have given a four-month timeframe between the application and the mention to enable the parties to arrange and attend the arbitration. If the parties are unable to complete the arbitration in that time, then the Judge who manages the case will make order directing an appropriate timeframe in which arbitration must be finished.

The arbitration hearing will be conducted electronically and generally each Friday.

Why Arbitration?

Arbitration is a very cost-effective method of resolving disputes. This is because the parties avoid the significant legal expense associated with running a matter at final hearing. Some clients who have particularly complex property and/or parenting disputes may spend over six figures in legal fees running their matters before a Judge and after the conclusion of the hearing, they may not receive the decision for a number of months.

Moreover, due to the significant backlog of cases before the Courts at present with matters only being listed for a final hearing some 12 to 18 months after the applications are filed, arbitration is a far better way to ensure a streamlined and expeditious outcome.

The decisions of the arbitrator are private and confidential and as such the decision is not published to the public. In addition, this process is far more flexible. Once the parties have agreed on an appropriate date for the arbitration to take place, the process is a very streamlined and expeditious. Arbitration also gives the parties an option to narrow the issue in dispute together and therefore control the duration of the hearing.

More information

If you have any further questions regarding the National Arbitration List or require advice in respect of your family law matter, please do not hesitate to contact us on 8600 9333 or email us at info@tlfc.com.au.

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