Pre-Action Procedures In Family Law Property Matters

The Federal Circuit and Family Court of Australia (“FCFCOA”) has introduced stricter rules in relation to Pre-Action Procedures and attempts to resolve matters prior to the issuing of court proceedings. These rules are set out in Rule 4.01 and Schedule 1 of the Federal Circuit and Family Court of Australia (Family Law) Rules 2021 (Family Law Rules).

Parties must make a genuine attempt to resolve a matter outside of court, or if there is no resolution at least narrow the issues in dispute prior to commencing court proceedings.

The Pre-Action Procedures apply to all parties and their legal representatives.

All parties must:

1. Read a copy of the “Before You File – Pre-Action Procedure for Financial Cases” Brochure which can be found on the FCFCOA website;
2. Make enquiries about and invite the other party to dispute resolution;
3. If dispute resolution has been attempted and has been unsuccessful, write to the other party outlining their position and any options for settlement and provide a reasonable time frame for a response;
4. Exchange relevant documents if possible; and
5. If all avenues for a settlement have been explored, provide the other party with written notice of their intention to commence court proceedings.

Parties must file a ‘Genuine Steps Certificate’ along with their Initiating Application in the FCFCOA outlining their compliance with the Pre-Action Procedures.

Are There Any Exemptions To The Pre-Action Procedures?

There are certain exemptions from complying with the Pre-Action Procedures, and these are as follows:

1. If there are allegations or risks of family violence;
2. If an application is urgent;
3. If there would be a prejudice to the Applicant if required to comply with the Pre-Action Procedures;
4. If there has been a previous application filed in the FCFCOA in the last 12 months by either party; and
5. If a party is bankrupt.

If relying on one of the exemptions, parties must indicate this in their Genuine Steps Certificate filed with the court and also explain why they rely on such exemption in their Affidavit material.

What Is The Purpose of The Pre-Action Procedures?

The court’s objective is to encourage parties to disclose relevant financial information early on in the process and help them to resolve their matters quickly, without incurring the costs associated with litigation.

The court also encourages parties and practitioners to refrain from using the Pre-Action Procedures improperly and raising issues that are irrelevant to the resolution of a matter.

If you have recently separated and wish to commence the Pre-Action Procedures in order to commence negotiations, you can reach out to the Family Law Team at DSA Law on (03) 8595 9580.