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PRE-ACTION PROCEDURES

The following has been extracted and summarized from the Family Law Rules 2004. This information is provided as a guide for readers to understand the general intent of the Rules. You are strongly advised to seek formal advice from an experienced family law solicitor before commencing any family court process or action.

General expectations by the Court

Each prospective party to a case in the Family Court of Australia is required to make a genuine effort to resolve the dispute before starting a case by:

  1. participating in primary dispute resolution, such as negotiation, conciliation, mediation, arbitration and counselling;
  2. exchanging a notice of intention to claim and exploring options for settlement by correspondence; and
  3. complying, as far as practicable, with the duty of disclosure.

Unless there are good reasons for not doing so, all parties are expected to have followed these pre-action procedures before filing an application to start a case. There may be serious consequences, including costs penalties, for non-compliance with these requirements.

The circumstances in which the court may accept that it was not possible or appropriate for a party to follow the pre-action procedures include urgent cases, or cases where family violence are involved, or where there are allegations of fraud.

What the Pre Action procedure hopes to achieve

The main objectives of the Pre Action procedures will be met by:

  • Improved communication between the parties prior to any court action;
  • A better, more complete exchange of information;
  • Earlier investigation by respondents and;
  • Improved and wider opportunities for settlement.

Why are there Pre-Action Procedures?

The objective of Pre-Action Procedures is:

  1. to encourage early and full disclosure in appropriate cases by the exchange of information and documents about the prospective case;
  2. to provide parties with a process to help them avoid legal action by reaching a settlement of the dispute before starting a case;
  3. to provide parties with a procedure to resolve the case quickly and limit costs;
  4. to help the efficient management of the case. And to help to reduce the duration and cost of the case; and
  5. to encourage parties, if a case becomes necessary, to seek only those orders that are reasonably achievable on the evidence.

At all stages during the pre-action negotiations the parties must have regard to the need to protect and safeguard the interests of any child and the continuing relationship between a parent and a child.

FURTHER INFORMATION

This Information Outline is provided courtesy of Westminster Lawyers who specialize in this area of law. They are located at Level 9,  552 Lonsdale Street, Melbourne, VIC 3000 or call them on (03) 9670-1734 you would like more information on this legal topic, or you wish to obtain formal advice regarding your situation.

Westminster Lawyers is a specialist family law firm practicing in Melbourne, Australia. We have eight lawyers including three lawyers accredited by the Law Institute of Victoria as specialists in family law. We are able to assist you in all areas of family law including prenuptial and precohabitation agreements, matters arising after the breakdown of a marriage or a relationship and Wills and estate planning. Our lawyers speak a number of languages including: English, French, Italian, Mandarin, Cantonese, Shangaihese, Hokkien and Japanese. We are part of a world wide network of affiliated law firms with expertise in family law. We act in a number of international family law matters and are able to offer our clients the benefit of seamless service between offices spread across Australia, North America, Europe, Asia and the Pacific.

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