Under Schedule 1 of the Family Law Rules 2021 (Cth) (the ‘Rules’) before a party can commence parenting or financial proceedings in Court there is a number of pre-action procedures that must be complied with.
Each party must make a ‘genuine effort’ to resolve a dispute before making an application to Court and there can be serious penalties if you do not comply. This includes costs penalties (for example, you may have to pay the costs of the other party) or a stay of proceedings until the necessary actions are complied with.
The purpose of the pre-action procedures is also set out in the Rules:
- To provide a pathway to settlement prior to Court,
- To save time and limit costs,
- To ensure that all relevant information is provided to the parties and known by the parties (‘The Duty of Disclosure’ – see below),
- To ensure efficient case management if Court is necessary,
- To encourage parties to only seek Orders that are reasonable and necessary,
- The overarching purpose of the practice and procedure provisions as provided in the Federal Circuit and Family Court of Australia Act 2021 (Cth) – facilitate just resolution of disputes according to law, and as quickly, inexpensive, and efficiently as possible.
When a party is considering filing an application in Court they must:
- Give the other party a copy of the Pre-Action Procedures
- Make enquiries regarding dispute resolution services
- Invite the other party to participate in a dispute resolution service.
Dispute resolution can include negotiation, attending family counselling or attending mediation.
Parties must also cooperate in agreeing to a dispute resolution service and make a genuine effort to resolve the issues by participating. For parenting matters, a certificate must be obtained from a family dispute resolution practitioner.
If agreement is still not reached, the other party refuses to participate or there is no dispute resolution services available, then the party intending to commence proceedings must provide a written notice of their intention to start a proceeding.
That notice must contain:
- The issues in dispute,
- What orders will be sought in Court,
- A genuine offer to resolve the issues,
- A time frame of at least 14 days for which the party is to respond.
If the other party does not respond to the notice or agreement still cannot be reached, a party may then file an application to commence proceedings in Court.
The Rules note that a party is not expected to follow pre-action procedures if it is not safe to do so.
Duty of Disclosure
The Duty of Disclosure which is contained at rule 6.01 of the Rules also applies to pre-action procedures. This rule states that each party must disclose to the other party any relevant information or documents in a timely manner. The duty continues throughout the proceedings.
In financial proceedings, once there is a dispute parties must exchange a schedule of assets, income and liabilities, a list of documents that a party can provide, and a copy of those documents if requested. Some examples of documents required include:
- Pay slips
- Notice of Assessments from the Australian Taxation Office
- Bank Statements
- Loan or mortgage documents
In parenting matters, as soon as practicable, documents should be exchanged which are relevant. Examples of the types of documents that must be exchanged includes medical reports, school reports, and photographs.
Genuine Steps Certificate
To ensure that parties have complied with pre-action procedures, at the time of filing to commence Court proceedings or when responding to an application, a ‘Genuine Steps Certificate’ must also be filed.
The certificate is to outline the party’s compliance with the pre-action procedures and the genuine steps taken to resolve the dispute. If an exemption is being sought from complying with the pre-action procedures, basis of that claim is to be included on the certificate (for example, urgency orders or family violence).
Under the Rules lawyers also have significant obligations during the pre-action procedure process. This includes:
- Advising of alternative dispute resolution processes
- Attempting to reach resolution by settlement
- Notifying a client if in their opinion it is in the client’s best interest to accept an offer
- Discourage clients from seeking orders that are not reasonably achievable
- Cease acting for a client if the client will not disclose a fact or document relevant to the proceeding.
There are strict requirements to comply with pre-action procedures before you can file an application to start proceedings in Court for parenting or financial matters. You must utilize alternative dispute resolution services when available (and if it is safe to do so), and you must make a genuine effort to resolve your dispute.
If you need further advice about complying with pre-action procedures, or are considering commencing proceedings in family law, please contact the experienced team at Miller Sockhill Lawyers on 07 5444 4750 and we can guide you through the process.