Pre-action Procedures for De Facto Couples

Before instituting a case in a family court de facto partners must make a genuine effort to resolve their dispute through pre-action procedures. It is to everyone’s best interest, the court, the parties and the children, if partners can reach an agreement about their family law issue without having to go to court.

What is a pre-action procedure?

It is a procedure that is required of parties to participate in before they come to court with their applications for orders. Dispute resolutions, counselling, negotiation, conciliation and arbitration are examples of pre-action procedures. The most commonly known pre-action procedure is the family dispute resolution (FDR) during which parties may negotiate with each other. During the FDR parties may also be arbitrated by the practitioner or counselled.

Parties must comply with the duty of disclosure in a pre-action procedure. They must also exchange notices of their intention to explore options for settlement through correspondence.

Most of all, parties are required to put in genuine effort to settle the dispute.

When is it required?

A family dispute resolution certificate from the practitioner is required before a financial or parenting case can proceed. Whenever a party seeks for orders from the court pertaining to property settlement, spousal maintenance and parenting he must attach to his application an FDR certificate.

The FDR certificate will state that the parties attended the FDR or at least one did and it was either successful or it failed. A party who is required to attend the FDR but did not do so may face penalties.

What are the objectives?

De facto partners are provided with an opportunity to come together and discuss ways on avoiding legal action. It is hoped that through the FDR parties will come to an agreement. The FDR is also a proper venue for disclosure and exchange of information and documents.  

If a case is unavoidable at least parties will be able to help in the case management by discussing what issues need to be addressed. Knowing the real issues at hand will aid in the quick resolution of the case.

If partners cannot agree on their issue they may at least be able to talk about how to keep the children, if any, from being adversely affected by the impending court case. That even if they have a court case the partners can agree on having a harmonious or civil relationship with each other.

What are the exemptions?

If there are allegations of family violence or abuse partners do not have to go through pre-action procedures anymore. Other reasons for being exempted from the requirement are if the matter is very urgent, if there are allegations of fraud, if it is a genuinely intractable dispute, if a time limit is about to expire, or if a partner would be prejudiced if a notice is sent to the other party that a case is about to be filed. A genuine dispute about the existence of the de facto relationship is also another instance that the court may not require for a pre-action procedure.