The Family Court of Australia’s dedicated National Arbitration List (NAL), which commenced in June, has proven successful in resolving family law property disputes, according to Chief Justice Will Alstergren.
His Honour said that, importantly, it had provided families with a cost-effective and timely alternative to the traditional path of litigation.
Chief Justice Alstergren, above, who is also Chief Judge of the Federal Circuit Court of Australia, said the NAL was one of many initiatives in a suite of reforms introduced to reduce the backlog of pending cases in the courts.
As an alternative to a court trial, parties could appoint their own accredited arbitrator and set their own timetable. This enabled families to extricate themselves from the anxiety of waiting for a judge to become available to hear their case.
All cases conducted as part of the NAL so far have been heard and determined by accredited arbitrators within three months of entering the judge‐controlled NAL, with no appeals to date.
Under court rules the arbitrator must produce an award within 28 days of concluding the arbitration. Once registered, the award becomes a decree of the court, enforceable like any other court order.
Justice Josh Wilson, who is the National Arbitration Judge for the Family Court, makes orders referring property cases to arbitration and requires the arbitration to be concluded within six months.
So far in its four months of operation, 55 matters have been referred to the NAL. To date, 12 have reached a final resolution, all within three months of the date of referral. The remaining 43 matters are undergoing close case management and are expected to have completed arbitration within three to six months of the date of referral to arbitration.
“To have cases determined and resolved by an arbitrator within three to six months of being referred is extremely impressive,” Chief Justice Alstergren said. “This is a relatively new innovation of the courts and while we are very happy with the results so far, we would like to see increased use of arbitration by practitioners and parties.”
Prior to the commencement of the NAL, delays in referring cases to arbitration, in registering awards and in the hearing of appeals from arbitrators, led to an unwillingness among parties and the legal profession to engage in the arbitration process. The NAL resolves the problem. Parties pay a fee to the arbitrator, as opposed to funding the cost of a lengthy trial. This ensures they have access to a speedy, legally sound and enforceable decision.
“Each Friday Justice Wilson sits to deal with applications in the NAL where he makes required orders and directions to remove any roadblocks to the hearing and determination of the arbitration,” Chief Justice Alstergren said. “This ensures accessibility to the court, fluidity and a fast turn‐around. The NAL is a good illustration of the courts and the profession working in partnership to assist litigants to resolve matters in a timely manner.”
The NAL also operates in the Federal Circuit Court. In both courts, parenting cases continue to be heard by judges and not arbitrators.