Family Law 2025

AUSTRALIA Law and Practice Contributed by: Paul Doolan, Melinda Winning, Carly Middleton and Jeff Marhinin, Barkus Doolan Winning

Pre-Action Procedures Except in cases of urgency, parties seeking financial relief in Australia must take genuine steps to try and resolve matters outside of 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. Enforceability of Settlements Australian law provides for a limited number of ways in which parties can make an enforceable agreement between them. The first of those is the making of a BFA in accordance with the provisions of the Family Law Act, whether that agreement is made prior to marriage or a de facto relationship, during a marriage or de facto relationship, or after the breakdown of the marriage and subsequent divorce or the end of the de facto relationship. The second is the making of an order, whether by consent or by court determination, pursuant to the Family Law Act. Informal agreements between parties, even if on an open basis and in writing, are not of themselves capable of enforcement such as to bring to an end litigation. Courts are protective of their jurisdiction and Parliament, by Australian

tralia are regularly published by legal services and on the internet. However, the case names are anonymised, as are any other identifying fea - tures such as the names of most witnesses and the names of the businesses or suburbs/cities in which litigants may reside. Further Anonymisation of Proceedings In appropriate cases, an application can be made to an Australian court in respect of proceedings for financial or parenting relief under the Family Law Act, to provide further confidentiality to the parties. Examples include the following. • An application can be made to remove the names of the parties from any published court list. • An application can be made to anonymise the names of the parties to the proceedings in any published court list. • In exceptional cases, an application can be made to “close” the court to any person who is not a member of the legal firm involved in the proceedings, a party to litigation, or a wit - ness involved in the case. Such an applica - tion generally needs to be made formally by written application, together with a support - ing affidavit explaining the need for further confidentiality or security, and will usually be determined by the relevant trial judge or judicial officer hearing the matter. 2.9 Alternative Dispute Resolution (ADR) Parties to Australian proceedings are required, before they start any case in the court, to make genuine steps to resolve the matter. There are a number of exceptions to that requirement for the taking of genuine steps – the primary being where there are issues of family violence that would prevent a party from safely participating in ADR such as mediation or negotiation.

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