When considering applying to the Federal Circuit and Family Court of Australia for financial orders, knowing the pre-action procedures required before starting a case is essential. This article provides information on what you need to do before going to court, as outlined in the Federal Circuit and Family Court of Australia (Family Law) Rules 2021.
Pre-Action Procedures For Property Settlement After Divorce & Separation
The primary objective of the pre-action procedures is to encourage dispute resolution through negotiation and narrow down the issues that require a court decision. By doing so, costs can be controlled, and disputes can be resolved quickly and efficiently, ideally without resorting to court proceedings. These procedures apply to prospective parties, respondents, and their respective lawyers.
Requirements for Compliance
Prospective parties must genuinely attempt to resolve their dispute before commencing court proceedings. These “genuine steps” involve the following:
- Familiarise Yourself: Read and understand the pre-action procedures outlined in the Family Law Rules to ensure compliance.
- Explore Dispute Resolution Services: Make inquiries about and invite the other party to participate in dispute resolution services such as family counselling, negotiation, conciliation, or arbitration. These services aim to facilitate communication and assist in finding a mutually agreeable resolution.
- Communicate with the Other Party: If dispute resolution attempts are unsuccessful, write to the other party, setting out your claim and exploring options for settlement. This step demonstrates a genuine effort to resolve the issues outside of court.
- Duty of Disclosure: Comply, to the extent possible, with the duty of disclosure by exchanging relevant documents. Full and frank disclosure is essential in family law matters, ensuring transparency and facilitating informed decision-making.
Exemptions from Pre-Action Procedures
Certain situations exempt parties from complying with the pre-action procedures, including:
- Allegations or risk of child abuse or family violence in parenting orders
- Allegations or risk of family violence in financial orders
- Urgent applications
- Undue prejudice if required to comply
- Previous family law applications filed within the last 12 months
- Divorce-only proceedings
- Child support applications or appeals
- Proceedings involving a court’s jurisdiction in bankruptcy under the Bankruptcy Act 1966.
Appropriate exemptions must be indicated in the Genuine Steps Certificate, which must be filed alongside the Initiating Application (Family Law) or the Response to Initiating Application, accompanied by an affidavit explaining the exemption’s applicability.
Parties’ Responsibilities and Compliance
Throughout the pre-action negotiations and any subsequent court proceedings, parties must adhere to their obligations:
- Identifying Issues: Identify issues early and explore options for settlement at all stages to facilitate efficient resolution.
- Responsible Communication: Maintain a respectful and constructive approach during correspondence, avoiding unnecessary hostility or inflammatory exchanges.
- Realistic Orders: Seek only those orders that are realistic and reasonable based on the available evidence and consistent with current law.
Proportionality of Costs: Ensure that the case costs are proportionate to the financial value of the dispute, avoiding disproportionate expenditure. - Duty of Disclosure: Make full and frank disclosure of all material facts, documents, and relevant information related to the dispute.
Non-compliance with Pre-Action Procedures
Unless exempt, failure to comply with the pre-action procedures can have serious consequences, including costs and penalties. The court will review compliance on the first court date and may order non-complying parties to pay the other party’s costs. Non-compliance can also influence how the case progresses through the court.
Before proceeding to court for financial orders in family law cases, it is crucial to understand and fulfil the pre-action procedures outlined in the Family Law Rules. Parties can navigate the legal process more effectively by genuinely attempting to resolve disputes, engaging in appropriate communication, and ensuring compliance. Seeking professional guidance from an experienced family law firm in Melbourne can further assist in understanding and meeting these requirements, ultimately facilitating the best possible outcome in your financial case.
