Considering starting action in the Family Court, whether regarding parenting arrangements or a property or financial settlement? Far better to stay out of court altogether! The law requires you to do things to stay out of court. These very specific “pre-action procedures” must be followed in accordance with the Family Law Act 1975 and the Family Law Rules 2004 before you will be able to commence any proceeding in the court. What are these pre-action procedures and how can they actually help you stay out of the court system?
The pre-action procedures are designed to help parties stay out of court and avoid the costs of court proceedings by achieving settlement of issues through dispute resolution before embarking on court action. They require parties to make a genuine attempt to negotiate, mediate and conciliate to try to resolve their dispute and stay out of court.
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, more efficient and less costly. Not as good as a stay out of court approach of course.
What are the pre-action procedures?
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 and if at all possible, stay out of court, saving money, time, and distress.
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.
Exceptions
For financial matters, you may be granted an exception from compliance with pre-action procedures in situations such as:
- matters involving allegations of sexual abuse or family violence;
- urgent matters (such as child abduction);
- if a time limit is near to expiring;
- if there has been a previous application made to the court within 12 months;
- if it’s a case regarding child support or involving bankruptcy;
And for parenting matters, exceptions may be granted for:
- urgent matters;
- matters involving allegations of sexual abuse or family violence;
- when a party can’t effectively participate in dispute resolution (for instance, due to distance from available services, or an incapacity to do so);
- for applications less than 12 months old of alleged contravention of orders, if the contravening person has shown serious disregard for their obligations under the order.
The courts also note that there may be other circumstances where pre-action procedures have not been followed and advise that “if you are relying on some other reason, think about whether you can justify it as a ‘good reason’”. This is because 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’ would be considered reasonable in the eyes of the court.
If genuine compliance with the pre-action procedures doesn’t settle your matter and you have not been able to stay out of court, then you may commence court proceedings.
You can read the prescribed brochures issued by the Family Court here:
If you would like more advice on pre-action procedures in relation to your specific circumstances, or you wish to file for an exception to complying with the pre-action procedures, or you would like to try to negotiate a settlement of your claim, 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 Alliance Family Law.
