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PRE-ACTION PROCEDURES IN FAMILY LAW

FAMILY LAW IN PRE-ACTION IN MELBOURNE

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Preliminary Procedures to Applications to the Family Court

(2006)

Before filing an application for financial or parenting orders, one must follow the  “pre-action procedure”  contained in the Family Law Rules.
 

RULES

1    Parties must (unless they are exempt) attempt some form of primary dispute resolution (“PDR”) – mediation, counselling, negotiation, conciliation, arbitration. If this is unsuccessful, the parties must then attempt to negotiate settlement. The PDR need not be with a government funded or approved organisation, as long as it falls within the definition in the Family Law Act of ‘PDR resolution’

2    If parties do not attempt PDR, they are not unable to bring an application, but are at risk of a costs order  

EXEMPTION

a)    Urgency;

b)    Where there are allegations of child abuse / family violence;

c)    Where a party would be unduly prejudiced or adversely affected if the other party became aware of their intention to initiate legal proceedings, and

d)    Where there has been an application about the same issue in the last 12 months.

REQUIREMENTS OF THE PRE-ACTION PROCEDURE

1.    Advise the other side of your intention to initiate proceedings and invite them to participate in PDR;

2.    Agree on an appropriate form of PDR and attend;

3.    If the parties reach agreement, they should consider formalising their agreement by filing an application for a Consent Order;

4.    If the parties do not reach agreement or if a party disagreed to attempt PDR, a person intending to file an application must give the other side Notice of Claim setting out the issues in dispute, the orders sought, a genuine offer about settlement. Duty of disclosure applies;

5.    If the parties reach agreement, they should formalise it by Consent Orders, and

6.    If the parties do not reach agreement, the pre-action procedure ends.

NEED MORE INFORMATION

Behan Legal advises and assists on these important issues. For an appointment, call 03 9646 0344 .

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