In September 2021 the Family Law Court system underwent some significant changes including the creation of one Court that now deals with all Family Law matters being the Federal Circuit and Family Court of Australia. With the creation of this Court also came the introduction of the Federal Circuit and Family Court of Australia Rules (Family Law Rules ) 2021. These rules now require all matters to complete a number of ‘pre-action’ procedures prior to the filing of a Court Application.
These ‘pre-action procedures’ are designed to ensure that parties make a genuine effort to resolve the dispute before commencing proceedings. There may be serious consequences for non-compliance with the procedures such as costs penalties or a stay of proceedings pending compliance with the pre-action procedures.
The pre-action procedures include the following:
- You must give the other party a copy of the pre-action procedures as outlined in Schedule 1 Part 1 (for property proceedings) or Schedule 1 Part 2 (for parenting proceedings);
- You must make enquiries about the dispute resolution services (mediation) available;
- You must invite the other parties to participate in dispute resolution;
- You must cooperate with the other party to agree on an appropriate dispute resolution service;
- You must participate in dispute resolution;
- You must give the other party written notice of your intention to start proceedings;
- You must have exchanged copies of relevant documents with the other party.
Dispute Resolution
You must make enquiries about the available dispute resolution services. There are both public and private services available to parties, each different provider will have different fees and waiting times. Often the public service providers offer a cheaper service, however, they may have a longer wait time. Private service providers or arranging for a legally assisted private mediation may have shorter wait times, but are more expensive.
You must invite the other party to participate in dispute resolution, and you must cooperate to agree on an appropriate service provider. For example, one party may propose the use of a private service however, the other party may not have the financial means to afford a private provider, so a compromise may need to be made to utilise a public service where the fees/costs are likely to be lower.
You must then participate in dispute resolution and make a genuine effort to resolve the outstanding issues, unless an exception applies. In the event that you do not reach a resolution for parenting matters at dispute resolution, the Mediator will issue you with a Section 60I certificate. The certificate is valid for 12 months and must be filed with a Court application for parenting matters.
Notice of Intention to Start Proceedings
In the event that either it is unsafe to attend mediation/dispute resolution, there is no appropriate dispute resolution services available, a party fails or refuses to participate in dispute resolution, or the parties are unable to reach agreement by dispute resolution, it is necessary that you notify the other party in writing of your intention to commence proceedings.
A notice of intention to start proceedings must include the following:
- The issues in dispute; and
- The orders being sought if proceedings are started;
- A genuine offer to resolve the issues; and
- A time that is at least 14 days after the date of the written notice within which the other party must reply to the notice.
It is expected that proceedings will not be started unless either the other party does not respond to the notice within the time frame, or agreement between the parties is unable to be reached after a reasonable attempt to settle the matter has been made.
Disclosure
You must provide full and frank disclosure of all information relevant to the issues in dispute. For financial/property matters this includes financial documents such as bank account statements, tax returns and valuations etc.
In parenting matters this can include medical reports about a child or parent, school reports, etc.
The Court takes a very strict approach in regards to disclosure. If proceedings are issued without having exchanged disclosure, the Court may make Orders that disclosure be exchanged before they will consider advancing the matter to the next step in the Court pathway.
Exemptions
There are a few exemptions that allows parties to file a Court application without following or completing the pre-action procedures. Those exemptions are as follows:
- There are allegations of child abuse or family violence or risk of child abuse or family violence;
- The application is urgent;
- Unduly prejudiced if required to complete the pre-action procedures; or
- A previous family law application has been filed by one of the parties in the last 12 months.
If claiming one of these exemptions, you must provide a factual basis for the exemption sought in the Affidavit that is filed with the Court application.
Summary
Ultimately, the aim of the pre-action procedures is to assist parties in resolving their matter without the need for a Court application, therefore saving the parties costs, time and stress. In the event that an application is made to the Court, compliance with the pre-action procedures will assist in the smoothest pathway through the Court system and hopefully lead to a prompt resolution of your matter.
If you require assistance ensuring that you are complying with the pre-action procedures or are considering making an application to the Federal Circuit and Family Court of Australia for property or parenting issues, please reach out to our office on 03 5623 5166 to schedule an appointment with one of our Family Lawyers.
Authors:
Lauren Van Der Veen – Lawyer
Disclaimer: The information in this post is general in nature. This does not constitute legal advice and should not be relied on as such. Please contact one of our Lawyers if you are seeking advice about a specific legal matter.
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