Pre-action procedures under the Family Law Rules 2021

General Pre-Action Procedures

Parties are required to comply with the pre-action procedures in accordance with the Federal Court and Family Court of Australia Rules 2021 (“FCFCOA Rules”) (rule 4.01) if they are filing court orders in relation to property and children’s matters. Pre-action procedures and not required for divorce applications, or if the court decides that the circumstances are such that it is inappropriate for parties to comply with the pre-action procedures.

Parties are required to:

• Comply with pre-action procedures specific to financial and parenting proceedings laid out below;
• Clearly identify issues requiring determination; and
• Take genuine steps to resolve these issues unless unsafe to do so.

The pre-action procedures vary based on the type of order sought. They are set out in schedule 1 of the FCFCOA Rules.

Section 60i certificate for parenting matters

For parenting matters, parties must obtain a section 60i certificate before filing or an application for final orders. A section 60i certificate indicates that you have arranged for a mediation event and have invited the other party to attend. A section 60i certificate lasts for 12 months and can be obtained even if the other party does not attend the mediation.

If an application for parenting was filed without a section 60i certificate, then the parties must file an affidavit of non-filing of Family Dispute Resolution Certificate setting out the factual basis of the exception.

The court can only hear an application without a section 60i certificate in exceptions laid out in section 60I(9) of the Family Law Act. These exceptional scenarios include where there has been abuse of the child by one of the parties to the proceedings or there is a risk of family violence by one of the parties to the proceedings. Even so, the courts must still consider making an order that family dispute resolution be attended in relation to that issue.

It is highly recommended that parties seek dispute resolution in relation to parenting matters.

Genuine Steps Certificate

A genuine steps certificate is required for both parenting and property matters. Applicants must indicate the steps that they have taken before taking the matter to court. Applicants must indicate whether they have made inquiries about dispute resolution services, invited the other party to participate in these services, cooperated with them to agree upon a dispute resolution service, participated in these dispute resolution services, and provided written notice of their intention to start proceedings.

Consequence of Non-Compliance

The courts can consider non-compliance when making orders about case management and orders for costs. Unreasonable non-compliance can result in staying the proceedings or ordering the non-complying party to pay costs of the other party.

Each prospective party must cooperate for the purpose of agreeing on an appropriate dispute resolution service; and make a genuine effort to resolve the dispute by participating in dispute resolution.

Examples of non-compliance include not sending written notice of proposed application, insufficient information or documents to the other party, not following a procedure required, not responding within a nominated time, and not responding appropriately within a reasonable time to any reasonable request for information, documents or other requirement of the procedures.

Urgency

If the application is made for property on an urgent basis, there is no need to submit documents that are usually needed such as a financial statement, financial questionnaire, and undertaking as to disclosure. All that is needed is an Initiating Application or an Application in proceeding, an affidavit stating facts relied on in support of the urgent application, accompanied by a letter as to the urgency and outlining the nature of the application.

Such is similar for an application for parenting orders. If it is urgent, parties must file the Initiating Application, affidavit stating facts relied upon, copy of the most recent family violence order and a Notice of Child Abuse, Family Violence or Risk. Similarly, the application must be accompanied by a letter as to the urgency and outlining the nature of the application.

Duty to Exchange Disclosure

Parties to a proceeding have a duty to make full and frank financial disclosure in a timely manner in accordance with rule 6.06 of the FCFCOA Rules.

Documents that are produced for the purpose of complying with pre-action procedures are to be used for the purpose of the proceeding only, including the resolution or the determination of the dispute to which disclosure of the document relates. The exceptions to this general rule are laid out in 6.04(2) of the FCFCOA Rules, where a solicitor may disclose or give copies of the documents to their client or counsel, or where the other party has a common interest in the document with the party possessing and controlling the document.

The parties need to be aware that the purpose of these pre-action procedures is to control costs and quickly resolve a dispute. The courts take this overarching purpose seriously. Parties are expected to comply regardless of the cases’ complexity.

Proper consideration should be given towards identifying the issues in dispute and providing full and frank disclosure and engaging with resolution in mind. Unnecessary adversarial conduct is not tolerated, and may lead to sanctions related to legal costs.

Going through court proceedings for parenting and property matters in the FCFCOA is not easy. It is important to engage the right legal team. At Greigs Legal, we prioritize your best interest and provide the guidance needed to navigate these complexities effectively. Fill in an enquiry form on our website or call us at (02) 4647 2968 to discuss your matter with one of our family law solicitors.