When the other side refuses to engage, the pre-action procedures can quickly become less about resolution and more about delay, cost and frustration.
While the framework is intended to encourage early settlement, many family lawyers are finding that it can just as easily entrench positions and push matters toward litigation.
We spoke with family lawyer Adam Cooper, of Cooper Family Law, about where the process breaks down in practice and how to respond when the other side simply won’t play ball.
Q: At a high level, what are the pre-action procedures trying to achieve?
A: In theory, they are designed to keep matters out of court by requiring parties to exchange information, make genuine offers, and attempt dispute resolution before filing. In practice, they often operate as a pathway into litigation rather than an alternative to it.
Q: Where do things tend to break down in practice?
A: The system assumes parties will engage rationally and in good faith. That is rarely the case. Separation brings emotional, financial and power imbalances that the framework does not adequately account for. As a result, what is intended to be a cooperative process often becomes adversarial very quickly.
Q: What does non-compliance actually look like in real matters?
A: It is not always overt refusal. More often, it is delay, selective engagement, or procedural compliance without any real intention of resolving the dispute.
This can look like a party who repeatedly seeks more time without progressing anything, provides incomplete or staged disclosure, or agrees to steps in principle but raises practical obstacles at every turn. Others engage in a way that appears cooperative on the surface, while effectively preventing any meaningful progress.
The result is a process that continues on paper, but goes nowhere in substance.
Q: Are some types of non-compliance more problematic than others?
A: Yes. Delay is particularly effective because it is difficult to characterise as unreasonable in isolation. Incomplete disclosure is another common issue. It can extend the process significantly while still appearing compliant.
Q: The Rules refer to “genuine steps”. How effective is that concept in practice?
A: The concept is sound, but difficult to enforce. The focus tends to be on whether steps were taken, rather than how they were taken. A party can technically comply while engaging in a way that is entirely inconsistent with the objective of resolution.
Q: Do the pre-action procedures actually help resolve disputes?
A: Not consistently. In many cases, they do the opposite. They can entrench positions, increase costs, and create a paper trail that makes later compromise more difficult. By the time parties reach court, positions are often more entrenched and the dispute more adversarial than when it began.
Q: So what should practitioners do when the other side is not engaging properly?
A: The priority is to maintain clear, documented compliance. That includes making genuine offers, responding within timeframes, and setting out your position in a way that can be demonstrated to the court. Even where the other party is not engaging, your client’s position should be protected.
Q: How do you avoid getting drawn into unproductive back-and-forth?
A: By being disciplined about process. Set clear deadlines, avoid unnecessary correspondence, and focus on steps that advance the matter. The objective is not to force cooperation, but to ensure the matter is properly positioned if court intervention becomes necessary.
Keen to learn more?
This session forms part of our 5-part webinar series Family Law Courtroom Strategies: Practical Tactics from Evidence to Enforcement. In his recorded webinar, Adam Cooper explores how to manage pre-action non-compliance in practice, including strategies to deal with delay, protect your client’s position, and navigate matters that are heading toward litigation.
