an offer to settle is a remedy available to both parties.
The main purpose of the Family Law Rules 2004 (FLR) is to make sure that each case relating to family relations is resolved in a speedy and timely manner at a cost to the parties and the court that is reasonable in the circumstances of the case.
An offer to settle is a remedy available to both parties to end a case without going to trial. This means that the parties themselves will agree to each other to settle the case without or less participation of the court. The court will not usually participate in the process of making an offer and counter-offer. This is a do it yourself process. Each party is encouraged at all times to make an offer to settle to the other party in an effort to resolve a case. However, the parties may ask the guidance of a lawyer to make sure that they make or accept a favorable offer.
Generally, an offer for settlement is not compulsory. The parties may disregard this remedy and may choose to go directly to the trial. A party to a case will not be forced by an order of the court to make offers to settle or make a counter-offer. While this process is not compulsory, the parties to a case are encouraged to take advantage of this process not only to save the cost of the case but also to avoid any inconvenience in going to court.
Why do you need to make offers for settlement?
Offers for settlement will avoid you from spending more money in your case. This will save you from any inconvenience in going through the legal battle.
How to make an offer?
The offer for settlement is easy to make. All that a party will do is to make it in writing and it must not be filed in court. A party may make an offer to another party to settle all or part of a case by giving the other party an offer to settle at any time before the court makes an order disposing of the case. (Rule 10.1 (1), FLR)
When do you make offers to settle?
A party may make an offer for settlement to the other party to settle or part of a case anytime before the court makes the judgment of the case or at any time during appeal.
When to accept offer to settle?
A party may accept offer to an offer to settle at any time before the offer is withdrawn by the one who made the offer or before the court renders judgment to the case.
Can a party withdraw the offer?
A party may withdraw the offer if the offer to settle is not compulsory. All that he or she has to do is to give a written notice to the other party that the offer is withdrawn. However, in the case of compulsory offer to settle, a party cannot withdraw the offer unless he or she gives another genuine offer to settle.
Compulsory offers to settle
There are instances that a party is required to make offers to settle. This is compulsory in property and parenting cases. It is compulsory for the prospective party to a case to comply with the pre-action procedures before going to court.
It is compulsory for a party to make offers to settle in property cases. A party cannot go to court directly if he or she did not follow the pre-action procedures. A person who is considering filing an application to start a case must, before filing the application, give a pre-action process which is may be an offer to settle. A person must make inquiries about the dispute resolution services available and invite the other parties to participate in dispute resolution with an identified person or organization or other person or organization to be agreed.
Like in financial cases, Each prospective party to a case in the Family Court of Australia is required to make a genuine effort to resolve the dispute before starting a case (clause 1 (1) of Part 2 of Schedule 1, FLR). A genuine effort refers may refer to the giving of notice of intention of exploring the options for settlement. This means that it is compulsory to make offers to settle if the case involves parenting. The court will not entertain the case if a pre-action procedure is not followed. A party who did not follow the pre-action procedure will suffer serious consequences, including cost penalties. (Clause 1 (3) of Part 2 of Schedule 1, FLR)
The compulsory offer to settle in property cases must be must made within 28 days after the conciliation conference or if no compulsory conciliation, 28 days after the procedural hearing or at any other time as ordered by the court.
The purpose of making a counter-offer is to get a win-win situation. A party will most likely accept the offer only if he or she is satisfied with the offer or at least he or she gets half of the benefits of the case. If the offer is not satisfactory, the other party may make a counter-offer. This means that he or she may make his or her own offer. The counter-offer may be entirely different from the original offer or an enhancement of it.
It is important to know that even if a party made a counter-offer, he or she is not prohibited from accepting the offer.
An offer to settle is not acceptable as evidence in court. However, for that offer to settle to be considered not acceptable as evidence in court it must be related to the case and the offer must be a genuine offer. Otherwise, it may be used against the party who made the offer. The without prejudice is intended to give the parties the freedom to stipulate the terms and condition of the settlement without fear that the offer that he or she made can be used later on against him or her if the dispute will go court.
Disclaimer : This article provides basic information only and is not a substitute for a professional or legal advice. It is prudent to obtain legal advice from a family lawyer.