Pre-action procedures: The new Family Law Rules 2021 set out specific obligations on parties to a family law financial dispute to make a genuine attempt to resolve their dispute before filing an application in court. Let’s take a quick look at what the new Rules require and what the consequences are of non-compliance.
[Pre action procedures for financial matters – continued]
The pre-action procedures
Under the new Rules, parties must also make a genuine effort to resolve their property/financial dispute.
This includes parties to participate in dispute resolution services (such as mediation). If unsuccessful, the person wanting to initiate court proceedings must write to the other party and set out the issues in dispute and what they intend to seek from the court, before filing proceedings.
These pre-action procedures are aimed at helping parties to identify and resolve issues in dispute without the need to initiate court proceedings. It means that potentially, part or all of the dispute can be resolved by agreement without the need to apply to the court.
There’s also the impetus of preventing parties from engaging in “systems abuse”, whereby unscrupulous spouses might seek to cause delays or their conduct might otherwise impede the fast and fair resolution of a matter. If there is no genuine attempt to resolve the matter outside of court, the court may order the non-compliant party to pay part or all of the legal fees incurred by the other party.
There are exemptions from complying with compulsory pre-action procedures in property/financial cases too. For financial matters, exemptions may apply in the following:
- Where it is unsafe to participate in dispute resolution,
- Urgent matters,
- If your case would be unfairly affected by having to comply with the compulsory pre-action procedures,
- If there has been a previous application in the same cause of action in the 12 months prior to the start of this proceeding,
- If the proceeding is a child support application or appeal, or
- If it involves a court’s jurisdiction in bankruptcy.
There have also been changes aimed at garnering the early exchange of relevant documents, both in parenting and property matters.
Our firm utilises technologies such as “1-click disclosure”. These kinds of tools enable family lawyers to streamline the disclosure process by reducing the time taken and therefore cost of lawyers dealing with the back and forth on disclosure.
Book your first conference with Alliance Family Law today. Simply contact Canberra family lawyer Cristina Huesch or one of our other experienced solicitors here at Alliance Family Law on (02) 6223 2400.
Please note our blogs are not legal advice. For information on how to obtain the correct legal advice, please contact Alliance Family Law.