Fixed-fee, speedy arbitration for separating couples to divide assets and even resolve parenting issues could be used more widely in Australia to lift the burden from the family law system, says the head of the Family Court.
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Arbitration is when a third party, usually a lawyer, reviews the evidence from both sides and makes a legally binding decision, avoiding the need to go to court.
In Australia, arbitration is available for property disputes but has not been widely used, says Chief Justice Diana Bryant. It could provide a quicker and cheaper option for "modest", straightforward cases, she said.
"We have to recalibrate what we mean by 'access to justice'. We need to remove the cases from the system that can be dealt with in another way," Ms Bryant said. Arbitration could also extend to straightforward parenting matters.
Australia's family law courts, which include the Family Court and Federal Circuit Court, are under growing pressure. Waiting times have ballooned to two years, and the complexity of matters coming before the courts has increased.
Former Family Law Council head Professor Patrick Parkinson has recently launched a private legal practice, "The Alternative Courtroom", which provides arbitration for people who have financial assets to be divided.
Professor Parkinson said separating couples will have a final decision in five to eight weeks, and most of it can be done online or over the phone, with no time in court.
Costs would start at about $3,500 per person, but represent a fraction of the cost of going through the courts, he said. "It's focused on middle Australia, people who have gone through a breakup and have a home, car and super, but not much else," said Professor Parkinson. "They can't afford to spend two years and large amounts of money on lawyers and legal fees."
Last week England launched an arbitration scheme for separating couples who want to resolve their disputes over children without going to court. Professor Parkinson would like to see a similar scheme here: "It's a win-win for everyone"
The matters coming before Australia's family law courts are more complex than ever: a 2014 survey found about a third of cases involved at least three risk factors like family violence, serious mental illness and drug or alcohol dependency.
More than 80 per cent of those surveyed had experienced family violence. But not all professionals who work in the family law system are trained in domestic violence or trauma.
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