The reality of “going to court” – the alternatives The reality of “going to court” – the alternatives

The reality of “going to court” – the alternatives

2 March 2016 | Separation & Divorce

The Family Court and Federal Circuit Court systems are significantly under-resourced, particularly the courts within south-east Queensland. Despite this, there is often a misconception amongst clients that they can just “go to court” and their matter will be dealt with immediately. The reality is that it can take years for families to receive final decisions in their matters.

Our recent experience includes a matter where proceedings were filed in the Federal Circuit Court in March 2014. A trial has been set down for November 2016 and judgment is likely to be handed down 6 months after the trial – meaning that those parties are waiting for over 3 years for their matter to be finalised.

Justice Forrest of the Brisbane Family Court recently spoke about the resourcing difficulties faced by the Family Court. There are currently only two trial judges sitting in the Brisbane Family Court and these judges cannot take on new matters until May/June 2016. Meanwhile, there are approximately 20 new matters being filed per month in the Brisbane Family Court, which is more than what two judges can keep up with.

The Family Court is implementing a new “judicial docket system” where the time frame between parties filing the proceedings and receiving final judgment is likely to be 24 to 32 months. The new system is designed to considerably reduce the time between trial and judgment, but the delays are still significant. While it has recently been announced that there will be a new Family Court judge appointed in Brisbane, this appointment will not be enough to help clear the back log. The reality will remain a long, emotionally draining wait for final judgment for hundreds of families across Queensland.

We encourage our clients to participate in alternative dispute resolution (ADR) options such as mediation and arbitration to resolve their matters.

Mediation involves using a professional and experienced mediator to act as an impartial third party to assist the parties to find solutions to the issues in dispute, with the parties ultimately reaching their own agreement.  

Mediation offers a number of advantages to the court process:

  • Cost effective
  • Promotes open communication and problem solving
  • Allows the parties to have control over the outcome of the matter
  • Less stressful and emotionally traumatic

If the matter cannot be resolved through mediation, parties can proceed to arbitration rather than commencing court proceedings. Though arbitration is a less common form of ADR within family law, it is an effective way of achieving certainty in a matter.

Arbitration involves the parties presenting arguments and evidence to the arbitrator who then makes a decision, similarly to a judge. Arbitrators may make decisions regarding property and financial matters. Their decisions are binding on the parties and they may be registered in court. If registered, a decision has effect as if it were a decree, judgment or order of that court.

Like mediation, arbitration is also quicker and more cost efficient than going to court. Other notable benefits include that the parties can choose their own arbitrator with whom they both have confidence in, while the process is flexible around the parties’ requirements and schedules – they are able to choose a date, location and timetable which suits them. These options are very attractive to clients in comparison to having judges and timetables allocated by the court with limited consultation. Further, arbitrators usually deliver their decisions within 28 days after the arbitration.

It is also possible to use a mixture of mediation and arbitration to solve a dispute. For example, if property division is successfully mediated, but the parties could not reach a decision regarding spousal maintenance, the parties can take this specific issue to arbitration rather than filing court proceedings and facing lengthy delays.

So while it may seem that the best option is to “go to court” to have your matter dealt with once and for all, keep in mind that a satisfactory final result can be achieved years earlier through ADR, while also saving the parties time, money and stress.

If you need advice about a family law matter, please contact our family law team.

Scott Wedgwood

Scott Wedgwood