Do I Have to go to Court Straight Away? What do They Mean When They Talk About Pre-action Procedures?

Avoiding Court

When a relationship breaks down, communication between ex-partners will often break down with that relationship. Ex-spouses and partners are suddenly instructing lawyers and Court seems inevitable.

However, it doesn’t have to be that way. Court and the legal system can be expensive and stressful for all parties.

If you can try to resolve your dispute or at least focus on the real issues of conflict, it will reduce the amount of time you have to spend with lawyers and can help you move on from the bitterness of your breakdown.

Background to Pre-action Procedures

The Family Courts have established a protocol to assist in finding areas of agreement and in sorting out what is really important to each partner. They are called Pre-action Procedures and they have been published in government brochures for both parenting and property. You can see these for yourself at the Family Law website:

• Parenting

  Family Court of Australia: Before you file- pre-action procedure for parenting cases & Compulsory Family Dispute Resolution – Court procedures and requirements. www.familycourt.gov.au.

• Property

  Family Court of Australia: Before you file- pre-action procedure for financial cases www.familycourt.gov.au.

PARENTING MATTERS

Before applying to the Court in parenting matters you must comply with the pre-action procedures by participating in compulsory Family Dispute Resolution (“FDR”), making a genuine attempt to resolve areas of dispute and narrow issues, which may still concern you or your ex-partner. Non-compliance may result in costs being awarded against the non-cooperative party or that party being prohibited from proceeding until Court-ordered steps have been fulfilled.

FDR aims to facilitate cooperative parenting and avoid court. When first consulted, solicitors must provide clients with the Court Brochures listed above which detail information about FDR and alternatives to court as well as court processes.

In preparation for FDR, parents must exchange all relevant documents such as school reports and treating medical practitioners, which may reveal any issues regarding the children’s welfare as set out in the Court Brochures. The FDR process maintains confidentiality for all parties unless a child is at risk of abuse.

Objectives

The objectives of Pre-Action Procedures reflect the Court’s primary consideration that the best interests of the children must inform every stage of family disputes. The Family Law Act mandates that parties must be advised accordingly.

Section 60I Certificate

The FDR practitioner will issue s 60I certificate to confirm that you have attended. You must obtain this certificate before filing an application for any parenting order.

Exemptions

The Court may accept circumstances that exempt parties from following pre-action procedures including urgency, allegations of violence or genuinely intractable disputes.

PROPERTY AND FINANCIAL MATTERS

Before applying to the Court for financial proceedings you must comply with pre-action procedures, which involve a genuine attempt to resolve areas of dispute or at least narrow the issues that remain in contention with your spouse or ex-partner so that the matter can, if possible, be resolved outside court. Pre-action procedures encompass:

• Participating in dispute resolution such as negotiation, conciliation or arbitration;

• Exchange of correspondence outlining financial areas of concern and options for settlement; and

• Complying with the duty of disclosure.

Aim

Pre-action procedures reflect the overriding principle of the Court and Family Law Rules to control costs, resolve issues quickly and avoid the need to go to court. We as solicitors must advise clients to keep in mind the principle of proportionality where legal costs can be disproportionate to the desired financial outcome.

Individual Circumstances

The Court provides for the parties to initially attend a case assessment conference. You must exchange with your ex-partner or his or her legal representative, documents including tax returns and assessments, superannuation and relevant information about interests such as shares in a family company or family discretionary trust. The Registrar will guide you both to focus on the areas of dispute specific to the case’s circumstances.

Where the financial matters have not been resolved the Court will make an Order for you both to attend a Conciliation Conference with further documentation required including a financial questionnaire and balance sheet.

The devastation of separation can lead to uncharacteristic and unacceptable behaviour by one or both parties. By participating in the mandated negotiation services, you may be able to determine the real basis of conflict and find a means of resolving it. It will be an opportunity for you to discuss your circumstances with an independent court officer, which may defuse the animosity to concentrate on the financial issues of household maintenance and family expenses.

Improper Purpose

The Court however, imposes strict guidelines that the procedures cannot be used for an improper purpose such as harassing the other party. You must each respect the other’s perspective and not attempt to protract proceedings or pressurise one party.

Disclosure Obligations

You both must make full and frank disclosure of all relevant documents and risk serious consequences of non-compliance. This involves exchanging a schedule of assets, liabilities, income and any relevant documents that are in your possession or control.

Outcome

In complying with pre-action procedure requirements you can have a voice in the negotiations and progress the matter without proceeding to a Court hearing. This reduces the financial and emotional costs of legal proceedings.

Each party must make a genuine effort to comply with the obligation to provide all relevant documentation, instructing your lawyers accordingly to facilitate meaningful negotiation by correspondence and attend dispute resolution to allow areas of dispute to be resolved or, where necessary, narrowed to focus further settlement discussions.

What Next?

The whole idea of pre-action procedures is to get everyone to meet half-way and see what can realistically be resolved and what remains in contention. It is a first step to help you move on with your life. If you can agree about what is important, you can then work towards settling on an outcome that you can all live with.

If you have reached a stalemate in trying to sort out your differences, it is best to seek legal advice to resolve issues that are important. Please don’t hesitate to contact us and we can see how we can work out a solution for you.

Disclaimer: The information contained herein is not intended to be a complete statement of the law on any subject and should not be used as a substitute for legal advice in specific fact situations.