Pre-Action Procedures

On 1 September 2021, the Federal Circuit Court and Family Court merged to become the Federal Circuit and Family Court of Australia (FCFCA). As part of this change, new court rules were implemented which place significant weight on parties making all reasonable efforts to resolve family law disputes quickly and fairly and avoid litigation wherever possible. These requirements are codified as the new court’s pre-action procedures. They are the steps required to be taken by parties prior to commencing proceedings.

The purpose of the pre-action procedures is to:

1. Encourage full and early disclosure through the exchange of information and documents about relevant issues
2. Help people resolve their differences quickly and fairly, so as to limit costs and where possible avoid the need to start court proceedings
3. Help parties to identify the real issues in dispute where an agreement cannot be reached out of court. This should help reduce the time and costs involved in court proceedings, and
4. Encourage parties to seek only those orders that are realistic and reasonable on the evidence.

Financial matters

Before filing an application in relation to financial matters, parties have an obligation to:

1. Provide the other party with a copy of the pre-action procedures, make enquiries about dispute resolution services and invite the other party to dispute resolution;
2. Cooperate for the purpose of agreeing to a dispute resolution service and make a genuine effort to resolve the dispute.
3. Comply with the duty of disclosure as far as practicable by exchanging relevant documents;
4. If a party intends to initiate proceedings, they must provide the other party with notice of intention to start a proceeding, setting out:
   1. The issues in dispute;
   2. The orders sought;
   3. A genuine offer to resolve the matter; and
   4. A date (at least 14 days) after the date of the notice by which the other party must reply.

A party who receives a notice of intention to start a proceeding must respond to the other party stating whether the offer is accepted. If it is not accepted, it must similarly set out the issues in dispute, the orders sought and make a genuine offer to resolve the issues and a nominated time to respond (no less than 14 days).

Where a party does not respond to a notice of intention to start a proceeding, the initiating party’s obligation to follow the pre-action procedure ends.

Where agreement is not reached after reasonable attempts to do so by correspondence, either party is at liberty to file an initiating application with the court.

Parenting matters

In the case of parenting matters, the court will not accept an application for orders to be made without the parties first having attended a Family Dispute Resolution Consultant and that Consultant issuing a Certificate (Section 60I Certificate) to say that Family Dispute Resolution has been attempted.

In addition to this requirement, before filing an application in relation to parenting matters, parties have an obligation to:

1. Provide the other party with a copy of the pre-action procedures, make enquiries about dispute resolution services available and invite the other party to participate in dispute resolution;
2. Cooperate for the purpose of agreeing to a dispute resolution service and make a genuine effort to resolve the dispute.
3. Comply, as far as practicable, with the duty of disclosure by exchanging relevant documents (in parenting proceedings, these may include criminal records of a party, documents filed in intervention order proceedings concerning a party, medical reports about a party or a child and school reports).
4. If you intend to initiate proceedings, you must provide the other party with notice of intention to start a proceeding, setting out:
   1. The issues in dispute;
   2. The orders you seek;
   3. A genuine offer to resolve the matter; and
   4. A timeframe (at least 14 days) after the date of the notice within which the other party must reply.

The process for responding to the notice of intention to start a proceeding is identical to those for financial matters (as outlined above).

Genuine steps certificate

When filing an Initiating Application or Response with the court, each party is required to complete a Genuine Steps Certificate. This confirms that the party has taken genuine steps to resolve their dispute and specifically that they have read, understood and followed the pre-action procedures before filing an Application with the court. 

Exemptions to compliance with pre-action procedures

The following matters are exempt from complying with pre-action procedures:

1. In parenting matters, if there are allegations of child abuse or family violence (or a risk of child abuse or family violence).
2. In financial matters, allegations of family violence (or a risk of family violence).
3. Applications that are urgent.
4. Matters where the applicant would be unduly prejudiced if required to comply with pre-action procedures.
5. Matters where a previous family law application has been filed in the last 12 months.
6. Applications for divorce only.
7. Child support applications or appeals.

Consequences of failing to comply with pre-action procedures

If a party fails to comply with the pre-action procedures, the court can make orders penalising the non-compliant party. This can include cost penalties or a stay on proceedings, prohibiting the matter from proceeding until the pre-action procedures are attended to.

For advice or representation in any legal matter, contact Armstrong Legal.