AUSTRALIA Law and Practice Contributed by: Paul Doolan, Melinda Winning, Carly Middleton and Jeff Marhinin, Barkus Doolan Winning
Service Requirements Except in those rare cases where a party com - mences proceedings seeking urgent ex parte relief, the applicant must otherwise as soon as reasonably practicable after filing serve sealed copies of the initiating proceedings on each respondent. The rules generally require personal service; however, service can be effected on a legal representative for the other party where they have instructions to accept service. In cases where a party cannot be served or is avoiding service, an interlocutory application can be made to the Australian court for sub - stituted service (for example, deeming service to be effected by service of the documents by email or other electronic means, or at a work - place, or at the last known residential address of the other party). Timeline for Financial Proceedings in Australia There is a heavy emphasis in Australia, both prior to the commencement of the proceedings and even after proceedings are commenced, on the resolution of matters through negotia - tion, mediation or arbitration rather than through court determination. Except in cases where it is impracticable or safety concerns make it impos - sible, the courts by and large require that parties participate in one or more mediations to try and resolve some or all of their dispute without there being a requirement for a final determination by a court. Parties can by consent, whether by private agreement or by an order made by consent in the court, also agree to participate in binding arbitration. A final arbitral award can then be reg - istered with the Australian court and be enforced as if it were an order made by the court. There
grounds that might include abuse of process or estoppel. 2.2 Service and Process Commencement of Proceedings Except in cases of urgency, parties seeking financial relief in Australia must take genuine steps to try and resolve matters outside the court system before instituting proceedings under the Family Law Act for property settlement and/or spousal maintenance. This requires, in general terms, that parties to a marriage or de facto relationship: • exchange financial disclosure materials; • make proposals for settlement; • participate in ADR; and • give prior notice of the intention to start a case, including identifying the matters in dispute and the orders that will be sought if proceedings need to be commenced under the Family Law Act. Initiating Documents in Financial Proceedings Parties to financial relief proceedings under the Family Law Act must file and serve material on the other party or parties at the start of the case. The applicant for relief will file an initiating appli - cation (setting out the precise terms of the final and/or interim relief sought) together with a financial statement (detailing income, expenses, assets, liabilities, superannuation, and financial resources). If interlocutory relief is sought, a sup - porting affidavit or affidavits will also be filed. The respondent to the proceedings will gener - ally serve “mirror” documentation where they oppose the relief being sought or if they seek different interim or final orders from the court.
35
CHAMBERS.COM
Powered by FlippingBook