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.