Pre-Action Procedures
The Federal Circuit and Family Court of Australia (Family Law) Rules (“the Rules”) introduced in September 2021 created a clear pathway for matters before they are filed in the Court. This pathway is referred to as the pre-action procedures.
The pre-action procedures require parties undertake certain actions to try to resolve their matter before they file an Application in the Court. In this week’s article, we look at these pre-action procedures.
Why have pre-action procedures?
The pre-action procedures encourage parties to resolve their matter without having to file an Application with the Court.
The Rules summarise the objectives of the pre-action procedures which are: -
(a) to encourage early and full disclosure in appropriate proceedings by the exchange of information and documents about the prospective proceeding;
(b) to provide parties with a process to avoid legal action by reaching a settlement of the dispute before starting a proceeding;
(c) to provide parties with a procedure to resolve the proceeding quickly and limit costs;
(d) to ensure the efficient management of proceedings in the court, if proceedings become necessary;
(e) to encourage parties, if proceedings become necessary, to seek only those orders that are reasonably achievable on the evidence;
(f) to give effect to the overarching purpose of the family law practice and procedure provisions as provided by section 67 of the Federal Circuit and Family Court of Australia Act 2021.
[Federal Circuit and Family Court of Australia Rules Schedule 1, Part 1(3) and Part 2 (3).]
If the parties cannot resolve the totality of their matter, undertaking the pre-action procedures should assist the parties in narrowing the issues that they do not agree on.
For example, in a parenting matter the parties may be able to agree on everything during a pre-action mediation but what orders should be made for parental responsibility.
Where can I find the pre-action procedures?
The pre-action procedures are contained in the Central Practice Directions the Rules.
The Court has also published Before you file brochures for parenting and property matters.
What are the pre-action procedures?
For both parenting and property matters, parties are required to: -
Invite the other party to mediation
If a party wishes to file a mater, they must first invite the other party to attend mediation. There are numerous services providing mediations including government funded services, private businesses, and barristers. Mediations can take place in person, by telephone or by video conference. Mediations can include both parties in one room, or a shuttle mediation where the parties do not see each other.
In a parenting matter, the parties are also required to have a current section 60I certificate. Not all mediators can provide section 60I certificates. If you have a parenting matter it is important to ensure that your mediator can provide a section 60I certificate.
Exchange relevant disclosure.
Parties have an obligation to disclose throughout their family law matter. This obligation continues until your matter is resolved. For more information on the requirement, see our article Duty to Disclose.
Serve a notice of intention to file proceedings on the other party.
The final step before filing an application is serving a notice of intention to file proceedings on the other party.
The notice of intention to file proceedings is required to set out the issues that are in dispute and the orders that the party will seek if a case is started. The party serving the notice must also include a genuine offer to resolve the matter.
The party issuing the notice must give a nominated timeframe for a response. The minimum timeframe required under the Rules is 14 days.
If the other party does not reply to the notice, the party who issued the notice can commence proceedings.
If the other party does reply, but the parties still cannot reach an agreement, they parties can file proceedings with the Court.
Are there any exemptions to the pre-action procedures?
There are some circumstances where a party does not have to comply with the pre-action procedures. The Rules specifically state that “parties are not expected to continue to follow the pre-action procedures if it is not safe to do so, or if reasonable attempts to follow the pre-action procedures have not achieved a satisfactory solution.” [Federal Circuit and Family Court of Australia Rules Schedule 1, Part 1(8) and Part 2 (8).]
How does the Court know if parties complied with the pre-action procedures
If a party is filing their matter with the Court, they must sign and file a Genuine Steps Certificate. The Genuine Steps Certificate confirms the party has undertaken all the required pre-action steps before they filed their application, or they have an exemption from complying with those pre-action procedures.
Please note: the information in this article is general in nature and is not legal advice. For specific advice about your circumstances, contact us to make an appointment with one of our solicitors.