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.

Family Law Kit

The above information is an extract from the AussieLegal Family Law Kit which includes detailed information and case studies on the Family Law Rules, Divorce, Child Residence & Child Access, Property Settlements, Child Support and Spousal Maintenance. The Family Law Kit also includes a Property Settlement Calculator which can help you estimate what your fair share of the matrimonial assets you are entitled to in the event of separation.

The Kit will be an invaluable guide you if you choose to act for yourself when making an application to the Family Court. Alternatively, if you choose to have a lawyer acting for you, the Family Law Kit will help you better understand what your lawyer is doing, help you ask the right questions and help you make informed decisions.

Click on the link above to read more about the Kit.