Pre-Action Procedures: Family Law Proceedings
Family law proceedings can be a costly expenditure and overwhelming in practice and procedure; however this does not have to be the case. The Federal Circuit and Family Court of Australia (FCFCOA) implemented mandatory ‘Pre-Action Procedures’ requiring parties to resolve disputes before commencing proceedings in Court.[1]
What are Pre-Action Procedures?
There are five steps to the pre-action procedure that must be followed, where safe to do so, prior to commencing proceedings in Australia. Compliance with pre-action procedures for all parties is subject to the Federal Circuit and Family Court of Australia (Family Law) Rules 2021 Rule 4.01(1).[2] Compliance with the pre-action procedures is done so that each party can show the Court that they have taken genuine steps to resolving their matter without the need to have the Court intervene.
These steps are as follows:
Step 1
Read the Court Prescribed- Pre-Action Procedures Brochure, to understand that the duty of disclosure applies while preparing for proceedings;
Step 2
Make inquiries about, invite the other parties to and where it is safe to do so, participate in dispute resolution services, such as family counselling, negotiation, conciliation or arbitration;
In parenting matters, a dispute resolution practitioner will typically issue a s 60I certificate which is required to be filed with the Court application (if Court intervention is required).[3]
Step 3
If dispute resolution is unsuccessful, write to the other parties, setting out their claim and exploring options for settlement; and
If no dispute resolution service is available, a person refuses or fails to participate, or agreement is not reached through dispute resolution, a person considering applying to the Court must give the other person/s written notice of the intention to start a proceeding. The written notice is called a “notice of intention”. There are specific requirements as to the drafting of the notice of intention otherwise you run the risk of not complying with the pre-action procures.
If you are responding to a notice of intention and do not accept the offer, you must set out in a letter:
- the issues in dispute
- the orders you will seek if a proceeding is started
- a genuine counter offer to resolve the issues, and
- a nominated time (at least 14 days after the date of the letter) within which the initiating party must reply.
The Court may order the non-complying party to pay all or part of the costs of the other party or parties in the case. The Court may also take compliance or non-compliance into account when making orders about how your case will progress through the Court.
Step 4
Comply, as far as practicable, with the duty of disclosure by exchanging relevant documents.
Following these steps, demonstrate to the Court that you have made a genuine attempt to resolve the dispute without intervention of the Court.
If an agreement is reached, this can be formalised through Consent Orders, making it binding without the need for court proceedings. If you progress to the next step in commencing proceedings in the FCFCOA, each party must file a Genuine Steps Certificate alongside their application/response indicating that the person has complied with pre-action procedures.[4]
Exemptions may apply for parties to avoid complying with the pre-action procedures which are as follows:
- there are allegations of family violence, or a risk of family violence
- the application is urgent
- the applicant would be unduly prejudiced if required to comply with pre-action procedures
- a previous family law application has been filed by one of the parties in the last 12 months.
If an exemption applies to your case, you must indicate in the Court documents the basis which the exemption may apply to you.
How a Family Lawyer can assist:
Navigating these pre-action procedures can be a complex and arduous task, particularly during an already stressful time. An experienced lawyer will assist you by:
- Explaining your rights and obligations;
- Ensuring compliance with pre-action procedures;
- Preparing and reviewing financial disclosure;
- Communicating and negotiating with the other side;
- Representing you in a mediation; and
- Formalising any agreement reached.
Obtaining legal advice can help protect your interests and improve the likelihood of resolving your matter in a quick and efficient manner.
If you are seeking legal advice, contact Michael Conley Lawyers who have decades of experience in family law and are a dedicated family law firm – contact us today on (02) 9223 5299 or email lawyers@michaelconley.com.au to book a free 15 minute consultation.
This Blog was written by Lilliana Fante, Senior Associate.
1 Federal Circuit and Family Court of Australia (Family Law) Rules 2021 s 4.01(1).
2 Ibid.
2 Ibid, s 4.02(1)(a).
4 Ibid, s 4.01(4).