Divorcing couples using private arbitration to bypass strained family court system

The family law courts are so stressed out that divorcing couples are taking matters into their own hands to bypass waiting queues that run into years. THIS IS HOW TO GET A DIY DIVORCE

Exclusive: Australian couples getting divorced are now hiring their own judge to bypass punishing waiting queues in excess of three years in the nation’s “broken” family law system.

Hundreds of couples fed up with waiting to have cases heard in the Family Court and Federal Circuit Court (FCC) have resorted to arbitration to settle their disputes in the last two years.

Arbitration allows couples to have their financial matters settled before a lawyer who is trained to settle their disputes outside a courtroom.

Australian Institute of Family Law Arbitrators and Mediators chair Andrew Davies told News Corp arbitration can be organised within months not years and it generally costs much less than a courtroom trial.

The cost of going to arbitration equates to what you would be paying in at least two court appearances leading up to trial plus a day at trial, or around $6500.

Mr Davies said there have been more than 400 cases settled through arbitration in the last 18 months — the first real take up since it was introduced 30 years ago.

“There wasn’t the extraordinary awful delays that we have now (in 1992),” he said.

“It’s gaining real traction. It’s becoming a thing that parties involved in family court proceedings are looking at as a real option.”

Divorcing couples are waiting years to have their case heard in the family court system.

Mr Davies said it can take years from the time of filing to trial for a case to be heard in court.

Delays in Sydney and Parramatta in financial cases and in many parenting cases are now in excess of three years; in Melbourne 12-18 months; Brisbane and Perth two years or more.

“Be mindful that the courts are under enormous workload pressure which contributes to the delays within the court system,” Mr Davies said.

“The fact that there are only a limited number of judges, they‘ve got little choice so the parties are being urged to use arbitration to resolve their disputes.”

It comes as News Corp can reveal individual judges in the FCC have dockets of 600 cases or more, as the Federal Government announced a parliamentary inquiry into family law.

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The Family Court currently hears family law cases involving complex financial arrangements, trusts, serious parenting arguments, allegations of child abuse in custody arrangements and protracted family disputes. The FCC deals with all other matters.

Law Council of Australia president Arthur Moses SC told News Corp “Australia’s family law system is broken”.

“Some judges in the Federal Circuit Court have dockets of 600 or more cases,” he said.

“Successive governments have failed to do what must be done to improve it: provide adequate funding, sufficient resourcing and a coherent structure to stop children and victims of family violence falling through the cracks.”

Some judges in the Federal Circuit Court have dockets of 600 cases or more.

He said a “holistic approach” to family law reform is needed including increasing the range and rate of family law arbitrations.

“It (arbitration) will play an important part but this alone cannot solve the underlying problem of delays in a chronically underfunded, under-resourced and overstretched court system,” he said.

The federal government has already proposed merging the FCC and Family Court to speed up the process of settling family disputes.

But Mr Moses said combining the courts would only make matters worse.

“These bills were not passed by the 45th Parliament with good reason, and should not be passed now.”

The FCC’s 2017-18 annual report showed the pending number of final order applications has grown in the past five years; the percentage of pending cases over 12 months old has increased; and the average time for trial has increased to 15.2 months.

“The FCC is conscious that it must explore ways of deploying its present resources to maximise the opportunity for cases to be resolved in a timely way,” it stated.

Similarly the Family Court says it aims to have more than 75 per cent of its pending applications less than a year old.

“The Court regularly reviews its oldest active cases to better understand the causes of their delay and to determine ways in which the older cases can be managed,” it said in its latest annual report.

HOW LONG DOES IT TAKE

FAMILY COURT

Had 20,436 cases filed. 20,377 were finalised. 6605 are pending.

75 per cent of judgments were delivered within three months.

67 per cent of cases pending conclusion were less than 12 months.

Of the pending cases 16 per cent are more than 24 months old; 18 per cent are 12-24 months old; 16 per cent are 6-12 months old and 51 per cent are 0-6 months old.

Source: Family Court of Australia Annual Report 2017-2018

FEDERAL CIRCUIT COURT (30 locations nationally)

85,745 family law applications filed, with 45,190 for divorce

62 per cent of final orders applications were disposed of within 12 months

91 per cent of all other applications were disposed of within six months

75 per cent of matters were resolved prior to trial

Source: Federal Circuit Court of Australia Annual Report 2017-18

WHAT TO DO IF YOU WANT AN ARBITRATOR

— Discuss the matter with your family law solicitor.

— Go to the Australian Institute of Family Law Arbitrators and Mediators website at www.aiflam.org.au. The Arbitration tab sets out and overview of what is involved, who are the arbitrators, advantages of arbitration and copies of relevant documents.

— Work with the arbitrator to shape the arbitration to deal with the specific matters relating to the case.

— There is significant flexibility in the process and the parties can have greater input into the process to ensure that it meets their needs.

— Remember ‘one size fits all does not apply and arbitrations can be arranged mindful of issue in dispute, costs and outcomes’.

— Any other queries then simply ask the AIFLAM.

Originally published as Divorcing couples using private arbitration to bypass strained family court system