Posted on 01 Oct. 2012
Staying out of court
By Slater and Gordon
The Family Courts are committed to encouraging those who have a property or parenting dispute to resolve their cases without going to court or through a trial.
Before someone starts a case in the Family Court about property division and financial settlement, or arrangements for children, they are required to go through specified Pre-Action Procedures. The Rules of the Court require that to happen.
The requirements of the Pre-Action Procedures are:
- in a financial/property case to make full disclosure of all documents relevant to the person's financial position, and in a parenting dispute any documents that are relevant to parenting issues
- to participate in dispute resolution, such as negotiation, conciliation or arbitration
- to give notice of an intention to commence proceedings before making an application to a court and exploring options for settlement
If someone doesn’t reasonably comply with a Pre-Action Procedure requirement, the Family Court may order them to pay some or all of the other party’s legal costs.
Someone who is considering filing an application to start a case in the Family Court must first give a court brochure about Pre-Action Procedures to the other person in the case. They must also find out about the dispute resolution services available and invite the other person to participate in appropriate dispute resolution.
Each person is required to cooperate in appointing a suitable dispute resolution service and to make a genuine effort to resolve the dispute.
The objectives of Pre-action Procedures are to:
- encourage early disclosure of relevant information to each person
- provide people with a process to help avoid legal action by reaching settlement, and
- limit legal costs
If the Pre-Action Procedures don’t result in an overall agreement, then at least the range of issues in dispute can be limited. Also, later court proceedings should move more smoothly and efficiently because of early identification of issues and disclosure of important and relevant documents.
The Pre-Action Procedure rules apply if someone is considering starting a case in the Family Court. The same rules do not apply for a case started in the Federal Magistrates Court (which deals with less complex cases). However, even for more straight-forward cases, it is normally a good idea to follow the Family Court Pre-Action Procedure requirements to try to achieve a settlement agreement without the costs and trouble of court processes.
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