By Gianna Huesch
If you are considering starting action in the Family Court whether regarding parenting arrangements or a property or financial settlement, it’s important to know that there are certain pre-action procedures that you are legally obligated to follow under the Family Law Act 1975 and the Family Law Rules 2004 before you can commence any application.
The pre-action procedures are designed to help parties avoid costly court proceedings through achieving settlement of their issues through dispute resolution services before embarking on court action. Even if settlement is not reached, the pre-action procedures assist parties to narrow down the issues in dispute and facilitate early disclosure of information which make any eventual legal proceedings faster and more efficient.
The pre-action procedures can be summarised as requiring you to:
- make a genuine effort to participate in dispute resolution;
- provide full disclosure of all documents relating to your financial position or which are relevant to parenting issues; and
- provide notice to the other party of your intention to commence proceedings. This includes providing the other party with a court brochure about the prescribed pre-action procedures and asking the other party to participate in an appropriate dispute resolution procedure. Each party then has the obligation to cooperate in selecting a suitable dispute resolution service and make the genuine effort to resolve the dispute.
Compliance with the pre-action procedures is very important as if you do not reasonably comply, the court may order you to pay all or part of the other party’s legal costs. There are however exceptions that a court will consider, such as situations involving family violence or child abuse, or where one party outright refuses to negotiate or attend dispute resolution, among other defined exceptions.
The court also notes that there may be other circumstances where pre-action procedures have not been followed, and the court brochure instructs that “if you are relying on some other reason, think about whether you can justify it as a ‘good reason’” as you may be required to provide that justification to the court—however it’s always best to check with your family lawyer, to ensure your idea of a ‘good reason’ can be considered reasonable in the eyes of the court.
The prescribed brochures issued by the Family Court can be downloaded here:
For financial matters: http://www.familycourt.gov.au/wps/wcm/connect/fcoaweb/reports-and-publications/publications/getting-ready-for-court/before-you-file-pre-action-procedure-for-financial-cases-%28prescribed-brochure%29
For parenting matters:
If you would like more advice on pre-action procedures in relation to your specific circumstances, please contact Canberra family lawyer Cristina Huesch or one of our other experienced solicitors here at Alliance Family Law on (02) 6223 2400.
Please note our blogs are not legal advice. For information on how to obtain the correct legal advice, please contact us to arrange a free first conference.
