Authored by Justin Dowd, Partner, Watts McCray. Updated by the LexisNexis Legal Writer team.

Pre-action procedures summarised

As the vast majority of family law cases commence in the Federal Circuit Court, all parties are expected to follow the pre-action compliance requirements as set out in the Family Law Act 1975 (Cth). Every Initiating Application is expected to have a s 60I certificate from an accredited Family Dispute Resolution (FDR) attached and where such a certificate has not been obtained, an Affidavit – Non-Filing of Family Dispute Resolution Certificate should be attached.

In this regard, the lawyer is expected to advise the client of the best way to resolve the dispute, including considering what a reasonable settlement option might be, or the likely cost if the matter were to run to trial. The lawyer should also advise the client as to the availability of Legal Aid assistance and the range of FDR services.

Before starting any litigation, every potential party is required to make a genuine attempt to resolve their dispute, whether it concerns property, children or both types of matters, by participating in a family dispute resolution (FDR) process. This procedure may be relatively informal and inexpensive if done through such services as Relationships Australia or more formal if conducted by an arbitrator and involving more complex family or business situations.

Every lawyer should encourage their client to avoid commencing litigation for both financial and pragmatic reasons, namely:

• • the escalating cost of protracted litigation;
• • the emotional cost to the litigant and children of long delays in resolving a dispute;
• • the potential damage to children involved in a parental dispute; and
• • identifying the real issues in dispute between the parties to enable early resolution.

Every matter should commence by the lawyer writing to the other party, indicating that their client is considering taking further action and inviting them to attend a family dispute conference with a nominated mediator and including a copy of the court’s pre-action procedures.

Usually there is an exchange of correspondence between the lawyers indicating the orders sought by their clients before an FDR conference and these responses can identify the key areas of difference between the clients.

Schedule 1 Pre-action procedures of the Family Law Rules sets out the process in detail to be followed by litigants and the obligations of lawyers in advising their clients. The Family Law Act 1975 (Cth) (the Act) requires the applicant to obtain a certificate from a registered family dispute resolution practitioner before filing an application for an order in relation to a child under Part VII of the Act. In parenting cases, each party is likely to seek varying orders in relation to the parental responsibility, residence and time spent with the children.

Property disputes require the parties to make full disclosure of relevant information such as a schedule of assets and liabilities, three most recent taxation returns, and superannuation interests. Typically, a party will provide a written appraisal of the value of real property and a completed superannuation form for the superannuation fund. Other relevant documents may include in the case of a self-managed super fund, a copy of its trust deed and three recent taxation returns, and similar information in respect of any business associated with a party. Documents produced in response to this preliminary disclosure process may not be used for any purpose other than resolving the dispute between the parties.

There are limited exceptions to the requirement to attend FDR, particularly if there are allegations of family violence but also in cases of urgency and where there is a genuine dispute as to whether there was a de facto relationship in existence. Where a party does not attend FDR after having been invited, the FDR practitioner may nevertheless issue a s60I certificate indicating the reasons that the conference did not occur and this will enable the applicant to commence proceedings.

Compulsory family dispute resolution — parenting cases

In relation to parenting matters, Pt VII Subdiv E of the Family Law Act makes it compulsory, subject to certain limited exceptions, for parties to meet together and to confer with a family dispute resolution (FDR) practitioner before proceedings can be commenced. See Compulsory family dispute resolution. See also Sch 1 Pt 2 of the Family Law Rules 2004.

Applicants must file a section 60I certificate prepared by a family dispute resolution practitioner with the Initiating Application to start a parenting case in the Family Law Courts.

Pre-action requirements under the Family Law Rules — all cases

In relation to financial matters, parties and their solicitors must comply with the pre action procedures listed in Sch 1 Pt 1 of the Family Law Rules. See Pre-action requirements under the Family Law Rules 2004 (Cth).

The Family Law Rules also provide that there may be serious consequences, including costs penalties, for non-compliance with these requirements: see rr 1.10 and 11.02(2). Costs orders can also be made against a lawyer by reason of the lawyer’s failure to comply with pre-action procedures: see r 19.10.

The rules which apply to pre-action procedures can vary between the Family Court, the Federal Circuit Court, and the Family Court of Western Australia. Care must be taken to ensure compliance with the Rules of the court in which proceedings are to be instituted.

The Family Court of Western Australia is regulated by the Family Law Rules 2004 but only as adopted and applied in Western Australia and also by the Case Management Guidelines (available on the Court’s website).

There are a number of dispute resolution processes available to parties to assist in the resolution of any dispute, some of which are only available to parties with legal representation (e.g. legally assisted mediation). The role of the family lawyer includes identifying and pursuing any dispute resolution process which might be of assistance to the parties. See General requirements of pre-action procedures Sch 1 Pt 1 of the Family Law Rules 2004 (Cth).

Those processes include:

• • Counselling;
• • Mediation;
• • Arbitration; and
• • Collaborative Practice.

Practice Tip: FDR is available for both parenting and financial matters. Family Relationship Centres tend to focus on parenting matters while private practitioners are mostly used for financial matters. The Federal Circuit Court has also introduced a judicial mediation process as an option when other dispute resolution processes have been unsuccessful.

The role of the lawyer includes identifying and pursuing any dispute resolution process which might be of assistance to the parties. See Lawyer’s Obligations in Sch 1 pt 1 of the Family Law Rules 2004.

Once an agreement is reached between the parties, the role of the lawyer is to advise their client on how to document that agreement to ensure that the terms of the agreement are comprehensive and that the client's interests are promoted and protected.

There are a number of options available to parties in which to document an agreement reached, including:

• • parenting plans in respect of children (see Parenting plans);
• • an Application for Consent Orders and terms of settlement (see Consent orders);
• • financial agreements (limited and binding) (see Financial agreements generally); and
• • child support agreements (see Child support agreements).

One or more of the above options may be used to document the agreement. For example, an agreement may include:

• • parenting care arrangements;
• • property settlement;
• • spousal maintenance; and/or
• • child support.

An Application for Consent Orders may deal with the parenting and property settlement while the child support can be dealt with in a child support agreement and spousal maintenance in a financial agreement.