Mid Mountains Legal Blog

Pre-action procedures before filing in the Federal Circuit and Family Court of Australia

Anthony Steel

Before taking your property or parenting issue to court, you must fulfil family law requirements known as the “pre-action procedures”. The court requires parties to make a “genuine effort” to resolve a dispute before going to court.

This includes:

  1. if you have participated in dispute resolution;
  2. whether disclosure obligations were met; and
  3. if you let the other party know you intended to take the matter to court (by sending a Written Notice to Issue Proceedings).

Dispute resolution in family law matters

Dispute resolution is one way of meeting the requirement to make a genuine effort to resolve a dispute before filing court proceedings. This includes seeing a family counsellor, negotiating privately or with legal assistance, or participating in mediation with an appropriately qualified mediator.

For parenting matters, parties are required to attend Family Dispute Resolution (FDR – a type of mediation) and to obtain a sec 60I Certificate from a FDR practitioner.

A sec 60I Certificate certifies that either:

  1. the FDR practitioner considered it inappropriate for the parties to attend mediation; or
  2. one of the parties refused to attend mediation; or
  3. Both parties attended mediation, however, one or both of the parties did not make genuine efforts to resolve the dispute; or
  4. the parties attended mediation and made a genuine effort to resolve the dispute.

You can find an accredited FDR practitioner near you here.

Exemptions to participating in dispute resolution

If an exemption applies, you are not required to participate in FDR or to obtain a sec 60I Certificate.

Exemptions include:

  1. If your matter is urgent. For example, where there are concerns for a child’s safety or well-being or the other party has taken steps to dispose of marital assets without your consent;
  2. If the court is satisfied that the other party has perpetrated child abuse or family violence.
  3. If there is risk of family violence if there is a delay in having the matter heard by a court;
  4. If a party cannot participate in dispute resolution due to physical remoteness or incapacity;
  5. If your application relates to a contravention of a court order made within the last 12 months, and party who has allegedly contravened the order is behaving in a manner that shows serious disregard for their obligations under the order.

To apply for an exemption from participating in FDR, you must file an affidavit with the court.

Disclosure in family law matters

Both parties have a duty of disclosure requiring them to exchange all relevant information and documents. Disclosure includes documents like bank statements, school reports, photographs, medical reports, and other relevant material.

Disclosure helps you reach an agreement in a fair and transparent manner, reduces the likelihood of legal action, and assists your lawyer and the judge to resolve the dispute.

For financial matters (related to property), parties must disclose the following:

  1. A schedule of assets, income and liabilities;
  2. Documents in your possession relevant to the dispute (bank statements, inheritance, tax returns, trust statements etc.); and
  3. A copy of any document required by the other party that would be considered relevant to disclosure.

For parenting matters, parties should determine whether they possess any relevant information to the issue in dispute, such as photographs, school reports, emails, text messages, or medical records.

Written notice of any intention to start proceedings

If dispute resolution is unsuccessful or unavailable, you must notify the other party that you are considering applying to the court to resolve your dispute. This letter must include:

  1. issues in dispute;
  2. the orders you seek from the court;
  3. a genuine offer to resolve the issues; and
  4. a nominated time (normally 14 days after the date of the letter) within which the other person must reply.

Family violence and child abuse

The court understands that family violence impacts many families seeking legal assistance. Your safety and the safety of any children involved is a paramount concern to the court.

If you are experiencing family violence from the other party or there is a risk of child abuse, you may be exempt from the pre-action procedures. If you are seeking an exemption on the grounds of child abuse or family violence, the Family Relationship Advice on 1800 050 321 may be able to assist.

If you have ongoing concerns about accessing legal services, we encourage you to contact the Family Violence Law Help crisis line on 1800 737 732.

If you are concerned about the immediate safety of yourself or others, you should call police on 000 in an emergency.

How we can help

Mid Mountains Legal can assist parties at all stages of the family law process and can offer guidance to ensure your matter is resolved as quickly and efficiently as possible. Contact us for your free initial telephone consultation.

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