Main purpose of the new Family Law Rules 2004

The main purpose of the Family Law Rules 2004, which came into effect on 29 March 2004, is to ensure that each case is resolved in a just and timely manner at a cost to the parties and the court that is reasonable in the circumstances of the case.

Some of the features of the 2004 Rules are as follows:

• To introduce 25 prescribed forms;
• Simplification of procedures;
• A dictionary;
• Simplified terminology;
• Encouragement in settlement procedures with:

• New Pre-action procedures;
• Compulsory offers of settlement;
• Prior to filing, various settlement attempts carried out.

• New procedures for the production of documents and disclosure;
• Appointment of a single expert witness (for example a valuer to value property or a business) and;
• New procedures for subpoenas that reduce the costs of appearing in court.

This is not a comprehensive list but highlights the most important features of the amendments. The most significant change to most cases will be the compulsory inclusion of procedures towards settlement. This highlights an even stronger emphasis on settlement than ever before in the Family Court system. In regards to the procedures for negotiating a settlement you should seek the advice of a solicitor.

Pre-action procedure

Before starting a case, each party to the case must comply with the pre-action procedures (see article) including attempting to resolve the dispute using primary dispute resolution methods.

The exceptions to this rule are:

1. for a parenting case where the case involves allegations of child abuse or family violence;
2. for a property case where the case involves allegations of family violence or fraud;
3. where the application is urgent;
4. where the applicant would be unduly prejudiced;
5. there has been a previous Court application between the same parties in the 12 months immediately before the start of the case;
6. the case is an Application for Divorce; or
7. the case is a Child Support Application or Appeal.

The court may take into account a party's failure to comply with a pre-action procedure when considering whether to order payment of the other party’s legal costs.

FURTHER INFORMATION

This Information Outline is provided courtesy of Dwyer Durack Barristers & Solicitors who are experienced in this area of law. They are located at Dwyer Durack House, 40 St. Georges Terrace, Perth, WA 6000 or call them on (08) 9325-9277 if you would like more information on this legal topic, or you wish to obtain formal advice regarding your situation.

Established in 1914, Dwyer Durack is one of Western Australia's most respected and progressive law firms. It is the leading legal firm in Western Australia for the provision of a comprehensive service in the private client areas of personal injuries, family law, employment law, criminal law, consumer law and wills and estates. The firm comprises 13 Partners and a total compliment of 120 personnel. Dwyer Durack is a member of the Australia-wide PeopleLaw group.