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 should follow, before commencing a court 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 should 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.
There may be exceptions to compliance with these pre-action procedures, such as situations involving family violence or child abuse, or where one party outright refuses to negotiate or attend dispute resolution, but generally, the court expects parties to comply with the pre-action procedures.
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’ is the same as what a court sees as a good reason.
The prescribed brochures issued by the Family Court can be downloaded here:
What applications are exempt from pre-action procedures?
Pre-action procedure is not required for certain applications, for example, for divorce only, for child support only, or where the case includes the court’s bankruptcy jurisdiction.
Also, the Court may accept that it is not possible or appropriate for the pre-action procedures to be followed in cases involving urgency, allegations of family violence or allegations of fraud. Similarly, exemptions may apply if there is a genuinely intractable dispute (for example, where one person refuses to negotiate) or where a person would be negatively affected if another person became aware of the intention to start a case.
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.
