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Federal Circuit and Family Court of Australia: Pre-Action Procedures

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By James Marmin

In September 2021, the Federal Circuit Court of Australia and the Family Court of Australia merged to form the new Federal Circuit and Family Court of Australia (“FCFCOA”). There were a range of motives for the merge, all with the underlying mission to streamline the court system for Family Law matters by creating a new case management pathway and by placing a larger focus on the pre-action procedures.

What are the Pre-Action Procedures?

Schedule 1 of the Federal Circuit and Family Court of Australia (Family Law) Rules 2021 provides the legislative basis for the pre-action procedures. Due to lengthy delays in Family Law matters progressing through the court system, the purpose of the pre-action procedures is to better facilitate open disclosure between the parties and allow genuine attempts from both parties to settle the matter before commencing proceedings.

Before a party can commence proceedings in the FCFCOA, if it is safe to do so, they must:

(a) Give a copy of the pre-action procedures to the other parties to the proceeding;
(b) Make inquiries about the dispute resolution services available;
(c) Invite the other parties to participate in dispute resolution;
(d) Cooperate for the purpose of agreeing on an appropriate dispute resolution service;
(e) Make a genuine effort to resolve the dispute by participating in dispute resolution.

At this stage of the process, if the parties are successful in reaching an agreement through the use of dispute resolution such as Mediation, they may arrange to formalise this agreement by the filing of an Application for Consent Orders. If you have reached an agreement with the other party in your Family Law matter, our lawyers at MDL can assist you in drafting these orders and having them filed with the Court.

However, if the parties have been unable to reach an agreement through dispute resolution or the parties have been unable to attend at dispute resolution, a party may wish to progress the matter and commence proceedings in the Court. Before a party can do this, they must write to the other party giving them notice of the intention to start a proceeding. This notice of intention to start a proceeding must set out:

(a) The issues in dispute;
(b) The orders to be sought if proceedings are started;
(c) A genuine offer to resolve the issues;
(d) A time (at least 14 days) after the date of the notice for the other party to respond.

It is expected that a party will not start a proceeding by filing an application in a court unless the other party does not respond to the notice of intention to start a proceeding or if the parties are unable to reach an agreement after genuine attempts.

What happens if I don’t comply?

The legislation provides that the Court may consider compliance and non-compliance with the pre-action procedures when it is making orders with respect to case management and considering orders for costs. Unreasonable non-compliance may result in the Court staying the proceeding pending compliance, or ordering the non-complying party to pay all or part of the costs of the other party in the proceeding. As these orders can be very costly, it is important that where possible each party complies with the pre-action procedures.

Examples of non-compliance can include:

• Not sending a written notice of proposed application;
• Not providing sufficient information or documents to the other party;
• Not responding appropriately within a reasonable time to the written notice;
• Not following any rule or procedure as required by the rules.

Exemptions to the Pre-Action Procedures

There are some situations under the legislation which will be exempt from the pre-action procedures and therefore not require compliance with the above procedures prior to filing with the Court. Matters which can be described as ‘urgent cases’ will be exempt from complying with the Pre – Action Procedures. This may be the need for an urgent injunction which needs to be sought to prevent another party from a certain act. As well, if there are allegations of child abuse, family violence or risk of family violence, the matter will be exempt from the pre-action procedures. Finally, if the other party refuses to engage in any negotiations the matter will be exempt from pre-action procedures.

If a party is claiming that they should be exempt from complying with the pre-action procedures for one of the above reasons, they will need to provide evidence to the court of the circumstances that give rise to that exemption. If you believe that you should be exempt from the Pre-Action Procedures you should seek legal advice to assist with the compiling of your submissions in support of this position.

How can MDL help?

Being able to finalise your property or parenting matter amicably using consent orders will deliver the best results and provide you with a sense of finality in a timely and cost-effective manner.

However, due to a range of reasons, sometimes this is not possible and the assistance of the Court may be required. If you are considering making an application to the court with respect to either a parenting or property settlement matter, it is important you obtain legal advice. This advice can assist you in not only being aware of your rights, obligations and entitlements, but also your lawyer will also be able to assist you with understanding the Court process and ensuring you are complying with the above procedures.

Our experienced Family Lawyers at MDL can advise you with respect to your options as well as assisting you with the pre-action procedures giving you the best opportunity of settling your matter. Additionally, if filing with the Court is required, MDL can help you prepare your application to the court in compliance with the above steps. Contact us today on 07 3370 5100 to speak to one of our Family Lawyers.

We have assembled a highly experienced, capable team of legal practitioners, committed to delivering you expertise across all legal services. Find your local office: