Pre Action Procedures in Family Law

Pre-action procedures are steps that a person must take before they can take a family law case to the Federal Circuit and Family Court of Australia. The purpose of these procedures is to encourage parties to make every effort to resolve their disputes prior to the court hearing. Mandated under the Family Law Rules 2021, family law pre-action procedures aim to encourage parties to negotiate and settle disputes amicably, preserving judicial resources and reducing emotional and financial stress for families. This article explains the purpose, requirements, exceptions, and implications of pre-action procedures in family law, focusing on their role in achieving just and equitable outcomes.

Objectives of pre-action procedures

These objectives of pre-action procedures reflect the overarching philosophy of the Family Law Act 1975, which emphasises non-adversarial resolution wherever possible. Specifically, these procedures aim to achieve the following objectives:

Promote dispute resolution

Encourage parties to settle their disputes through negotiation, mediation, or arbitration, avoiding the need for litigation.

Foster cooperation

Encourage open communication between parties to identify common ground and resolve issues collaboratively.

Minimise costs

Reduce legal costs by avoiding unnecessary court proceedings.

Efficiency of court processes

Ensure that, where litigation is unavoidable, the issues are clearly identified and the court’s time is used efficiently.

Protect children’s best interests

Particularly in parenting disputes, pre-action procedures focus on prioritising the welfare of children.

Exchange of correspondence

Before initiating court proceedings, the parties are required to exchange correspondence detailing the issues in dispute, including a clear outline of the issues requiring resolution, proposed suggestions for resolving the issues (thereby demonstrating a genuine attempt to settle), and other relevant information. This exchange ensures transparency and allows both parties to assess the feasibility of settlement.

Family law matters subject to pre-action procedures

Additional pre-action procedures apply to most family law matters, including cases involving:

• division of assets and liabilities between separated parties (property)
• the care, welfare, and development of children (parenting)
• financial support for a former partner (spousal maintenance).

Property matters

When filing a financial matter application, during the pre-action procedures the parties are obligated to:

• provide a copy of the pre-action procedures to the other parties, investigate dispute resolution services and invite the other party to dispute resolution
• cooperate during dispute resolution service and make a genuine effort to resolve the dispute
• comply with the duty of disclosure as much as possible by exchanging relevant documents
• if a party initiates proceedings, they must provide the other party with notice of intention to start a proceeding, setting out:

• the disputes at issue
• the orders that are being sought
• a genuine offer to settle the matter, and
• a specified deadline, at least 14 days from the date of the notice, by which the other party must respond.

In property disputes, financial disclosure is a critical part of the duty of disclosure. Parties to such matters must provide comprehensive and accurate information about:

• assets and liabilities (real estate, bank accounts, investments, debts, and superannuation)
• income and expenses (details of employment income, benefits, and living expenses).
• relevant documents (financial statements, tax returns, and other records).

Failure to disclose relevant information during this pre-action stage can result in penalties or adverse inferences by the court.

As part of the pre-action proceeding, the party who receives a notice of intention to start a property proceeding must respond to the offer, either accepting or returning with its own list of issues of dispute, orders sought, genuine settlement offer and date to respond (at least 14 days later). When the parties cannot reach an agreement after reasonable efforts in correspondence, either party can file an initiating application with the court.

The initiating party’s obligation to follow pre-action procedure ceases if the other party fails to respond to a notice of intention to start a proceeding.

Parenting matters

In parenting matters, parties are generally required to attend Family Dispute Resolution (FDR) before applying to the court. FDR is a form of mediation conducted by accredited practitioners who assist parties in reaching parenting agreements. If FDR is unsuccessful, the practitioner issues a Section 60I certificate, which must be filed with the court to demonstrate compliance with pre-action requirements.

Whether filing an Initiating Application or Response for a parenting matter, each party must complete a Genuine Steps Certificate to confirm that they have read, understood and followed the pre-action procedures before proceeding to court. Also, before filing an application with the court, the parties must:

1. provide a copy of pre-action procedures to the other party, look into and invite the other party to participate in dispute resolution services
2. cooperate with one another and genuinely attempt to resolve the dispute through dispute resolution
3. comply with the duty of disclosure and exchange relevant documents (including criminal records, intervention order documentation, school reports and relevant medical reports).

The process for responding to a notice of intention to start a parenting proceeding are the same as those for financial matters outlined above.

Exceptions to pre-action procedures

Certain circumstances exempt parties from complying with pre-action procedures. These include:

• urgent matters that require immediate intervention, such as those involving family violence or imminent harm to a person or property
• situations where one party cannot be located or where one party refuses to engage in the process
• where there is a history of domestic violence or other abuse, the court may waive pre-action requirements to protect vulnerable parties.

Court’s role in pre-action procedures

The court requires parties to demonstrate compliance with pre-action procedures before accepting a formal application. Parties must file an affidavit or a covering letter explaining the steps taken to resolve the dispute. This ensures that court proceedings are initiated only as a last resort. Failure to comply with pre-action procedures can result in costs orders, where the court may order a non-compliant party to pay the other party’s legal costs. The case may also be delayed to allow the parties to complete pre-action requirements. Non-compliance may even influence the court’s view of the party’s conduct and reasonableness.

An experienced solicitor can provide advice about engaging in pre-action procedures in an effective manner. Phone Go To Court Lawyers on 1300 636 846 for any legal assistance.