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What needs to be done before applying?

Before any action is taken in the Federal Circuit and Family 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, it is necessary for both parties to attempt to resolve their dispute by family dispute resolution unless an exception applies [Family Law Act 1975 (Cth) s 60I(8)]. Exceptions 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, in relation to some contravention applications and where one or more parties is unable to participate effectively (because of incapacity or physical remoteness or some other reason) [s 60I(9)]. A certificate from a family dispute resolution practitioner or an affidavit as to exception must be filed with the application for parenting orders [r 4.02].

Pre-action procedures

There are also pre-action procedures set out in the Federal Circuit and Family Court of Australia (Family Law) Rules 2021 (Cth) sch 1. These need not be complied with where there is a risk of family violence, urgency, undue prejudice or there has been a previous application in the same cause of action in the last 12 months [r 4.01(3)].

At the time of filing an application to start a proceeding, each party must file a Genuine Steps Certificate outlining:

  • the party's compliance with the pre-action procedures and the genuine steps taken by them to resolve the dispute, or
  • the basis of any claim for an exemption from compliance from either the pre-action procedures or other genuine steps.

The pre-action procedures are set out in schedule 1 to the rules. They require the following (if it is safe to do so):

  • The person considering filing an application must give a copy of the pre-action procedures to the other party, make inquiries about family dispute resolution services available and invite the other party to participate in family dispute resolution.
  • To the extent it is safe to do so, each party must cooperate for the purpose of agreeing on an appropriate family dispute resolution service and make a genuine effort to resolve the dispute by participating in the dispute resolution.
  • If dispute resolution is successful, and the parties reach agreement, they may arrange to formalise the agreement by filing an Application for Consent Orders.
  • If dispute resolution is unsuccessful, before filing an application, the proposed applicant must notify the other party of their intention to start a proceeding in writing, stating:
    • the issues in dispute,
    • the orders that will be sought if a proceeding is started,
    • a genuine offer to resolve the issues, and
    • a time at least 14 days after the date of the notice within which the proposed respondent has to reply.
  • The proposed respondent must reply in writing within the required time, stating whether the offer is accepted and, if not, setting out:
    • the issues in dispute,
    • the orders that will be sought if a proceeding is started, and
    • a genuine counter-offer to resolve the issues, and
    • a time at least 14 days after the date of the reply within which the proposed applicant has to reply.

It is expected that a party will not start a proceeding by filing an application unless the proposed respondent does not respond to a notice of intention to start a proceeding, or if no agreement can be reached after a reasonable attempt to settle the matter by the required correspondence.

Schedule 1 also sets out that both parties must comply, as far as practicable, with the duty of disclosure set out in rule 6.01. This means that each party will disclose to the other all information that is relevant to the issues in dispute in a timely manner. Copies of relevant documents such as medical reports and school reports should be exchanged. Sub rule 6.05(2) lists relevant documents that must be disclosed in parenting proceedings.

Anyone who does not comply with these requirements (unless exempt under sub rule 4.01(2)) 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 and may stay a proceedings pending compliance.

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].

For more information, see the Court's brochure Before you file - pre-action procedure for parenting cases.

What needs to be done before applying?  :  Last Revised: Fri Sep 17th 2021
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