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What needs to be done before applying?

Before any action is taken in the Family or Federal Circuit Court, certain steps must usually be taken (called pre-action procedures), unless the matter is exempt or potentially exempt from this requirement. These steps are designed to ensure that reasonable attempts are made to resolve the matter without going to court.

Family dispute resolution required for all parenting order applications

Prior to commencing an application for parenting orders, whether in the Family Court or the Federal Circuit Court, it is necessary for both parties to attempt to resolve their dispute by family dispute resolution unless an exemption applies. A certificate must be issued by a registered family dispute resolution practitioner indicating that mediation has been attempted. Exemptions apply in cases where the application is an urgent one (e.g. recovery of a child), where allegations of child abuse or family violence have been made and where there is a genuinely intractable dispute (e.g. where one person refuses to negotiate).

Pre-action Procedures in the Federal Circuit Court

Parenting order applications

All applications for parenting orders in the Federal Circuit Court are now required to follow the pre-action procedures followed in the Family Court (see below).

Non-parenting order applications

Pre-action procedures that are required before taking action in the Family Court do not apply in the Federal Circuit Court for non-parenting order applications.

Pre-action Procedures in the Family Court

For both parenting order applications and non-parenting order applications you must complete certain pre-action procedures before you can file an application in the Family Court. Family Law Rules 2004 (Cth) r 2.02 sets out which forms you need to file. See also the Family Court brochure on Pre-Action Procedures for Parenting Cases.

In most cases, once an application has been lodged in the Family Court it will be necessary to serve copies of any application and supporting documents on the other person.

The pre-action procedures are set out in schedule 1 to the Rules. They require the following.

  • The applicant must give a copy of the pre-action procedures to the other party and invite them to participate in primary dispute resolution.
  • Parties (unless exempt) must participate in dispute resolution services, such as mediation, counselling, negotiation, conciliation or arbitration.
  • If dispute resolution is unsuccessful, the applicant must give notify the other party of their intention to commence an application in writing, stating:
  • the issues in dispute,
  • the orders that will be sought if a case is started, and
  • a genuine offer to resolve the issues.
  • The letter must state how long the other party has to respond and a period of at least 14 days must be allowed.
  • The other party must reply to the letter within the required time, stating whether they agree to the offer or not. If not, they must state in their letter:
  • the issues they believe are in dispute,
  • the orders they will seek if a case is started, and
  • a genuine counter-offer to resolve the matter.
  • The letter must state how long the other party has to respond and a period of at least 14 days must be allowed.

  • Both parties must comply, as far as practicable, with the duty of disclosure set out in Chapter 13 of the Rules. [See also the Family Court brochure Duty of Disclosure].

  • Unless exempt from these procedures, a party should only start court proceedings if the other party does not respond to a notice of intention to start a case, or if no agreement can be reached after a reasonable attempt to settle the matter.

Anyone who does not comply with these requirements (unless exempt) risks serious consequences, including costs penalties. Where there is unreasonable non-compliance, the court may order the non-complying party to pay all or part of the costs of the other party or parties in the case. The court may also take compliance or non-compliance into account when making orders about case management.

The court expects parties to take a sensible and responsible approach to pre-action procedures and parties must not use the pre-action procedure for an improper purpose (for example, to harass the other party or to cause unnecessary cost or delay). Parties must not raise in their correspondence irrelevant issues or issues that might cause the other party to adopt an entrenched, polarised or hostile position [see schedule 1 to the Rules].

What needs to be done before applying?  :  Last Revised: Fri Dec 23rd 2016
The content of the Law Handbook is made available as a public service for information purposes only and should not be relied upon as a substitute for legal advice. See Disclaimer for details. For free and confidential legal advice in South Australia call 1300 366 424.