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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 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.

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