the aim of the pre-action procedures is to explore areas of resolution and, where a dispute cannot be resolved, to narrow the issues that require a court decision.
what applications are exempt?
This should control costs and if possible, resolve disputes quickly, ideally without the need to apply to a court. Rule 1.05 and Schedule 1 of the Family Law Rules 2004.
The pre-action procedures applies to:
- anyone considering starting a case
- anyone named as a respondent if a case is started, and
- their lawyers (if any).
The Family Law Rules require prospective parties to genuinely try to resolve their dispute before starting a case. Except for those situations listed under the heading ‘What applications are exempt?’, all prospective parties must:
1 Participate in dispute resolution services, such as family counselling, negotiation, conciliation or arbitration.
2 If dispute resolution is unsuccessful, write to the other parties, setting out their claim and exploring options for settlement.
3 Comply, as far as practicable, with the duty of disclosure
Anyone who does not comply (unless exempt) risks serious consequences, including costs penalties.
Pre-action procedure is not required for applications:
- for divorce only, or
- for child support only, or
- where the case includes the Court’s bankruptcy jurisdiction.
Also, the Court may accept that it is not possible or appropriate for the pre-action procedures to be followed in cases:
- involving urgency
- involving allegations of family violence
- involving allegations of fraud
- where there is a genuinely intractable dispute (for example, where one person refuses to negotiate)
- where a person would be unduly prejudiced or adversely affected if another person became aware of the intention to start a case (for example, where there is a genuine concern that the other person would attempt to defeat the claim if they had this prior knowledge)
- where a time limitation is close to expiring
- where there has been a previous application about the same issue or subject in the last 12 months, and where there is a genuine dispute about either the existence of a de facto relationship, or whether a party’s choice to agree to the jurisdiction of the Family Law Act 1975 in relation to the property or maintenance of a party to a de facto relationship should be set aside.
- To encourage early and full disclosure through the exchange of information and documents about the prospective case.
- To help people resolve their differences quickly and fairly, and to avoid legal action where possible. This will limit costs and hopefully avoid the need to start a court case.
- Where an agreement cannot be reached out of court, to help parties identify the real issues in dispute. This should help reduce the time involved and the cost of the case.
- To encourage parties to seek only those orders that are realistic and reasonable on the evidence.
At all stages during the pre-action negotiations and during the case itself, should you ultimately apply to a court, you must keep in mind:
- the importance of identifying issues early and exploring options for settlement
- the need to avoid protracted, unnecessary, hostile and inflammatory exchanges
- the impact of correspondence on the reader, particularly on the other party in the case
- the need to seek only those orders that are realistic and reasonable on the evidence and that are consistent with current law
- the principle of proportionality and the need to control costs; because it is unacceptable for the costs of any case to be disproportionately high compared with the financial value of the subject matter of the dispute, and
- the duty to make full and frank disclosure of all material facts, documents and other information relevant to the dispute – see page 4 for more on disclosure.
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, or
- in correspondence, raise irrelevant issues or issues that might cause the other party to adopt an entrenched, polarised or hostile position.
The Court expects parties to take a sensible and responsible approach to pre-action procedures. You are not expected to follow the pre-action procedures to your detriment if reasonable attempts to follow them have not achieved a satisfactory result.
If a case is then started, the Court may consider whether the requirements have been met and, if not, what the consequences should be (if any).
The Court may:
- where there is unreasonable non-compliance, order the non-complying party to pay all or part of the costs of the other party or parties in the case, and/or
- take compliance or non-compliance into account when making orders about how your case will progress through the Court. (See, for example, The Family Law Rules 1.10, 11.03 and 19.10.)
In addition, the Court may ensure that the complying party is in no worse a position than he or she would have been if the other party had complied with the pre-action procedure. Examples of non-compliance with a pre-action procedure include:
- not sending a written notice of proposed application
- not providing sufficient information or documents to the other party
- not following a procedure required by the preaction procedure
- not responding appropriately within the nominated time to the written notice of proposed application, and
- not responding appropriately within a reasonable time to any reasonable request for information, documents or other requirements of this procedure.
Your obligations as a prospective party to a case
STEP 1 Invite the other parties to participate in a family dispute resolution
A person who is considering filing an application to start a case must:
- Give a copy of this brochure to the other prospective parties to the case.
- Invite the other parties to participate in dispute resolution.
Each prospective party must:
- agree on an appropriate dispute resolution service, and
- make a genuine effort to resolve the dispute by participating in dispute resolution.
If an agreement is reached, you and the other party may enter into a financial agreement or apply to court for consent orders. For more information consult with your lawyer.
- no dispute resolution service is available
- a person refuses or fails to participate, or
- agreement is not reached through dispute resolution, then a person considering applying to a court must give the other person/s written notice of the intention to start a court case (called a notice of claim), setting out:
- the issues in dispute
- the orders to be sought if a case is started
- a genuine offer to resolve the issues, and
- a nominated time (at least 14 days after the date of the letter) within which the other person must reply. This brochure must be attached to the notice of claim.
If you receive this notice of claim, you must within the nominated time, reply to it in writing stating whether the offer is accepted.
Where agreement is reached, you and the other party should consider formalising your agreement by entering a financial agreement or filing an application for consent orders.
Where you do not accept the offer, you must set out in a letter:
- the issues in dispute
- the orders you will seek if a case is started
- a genuine counter offer to resolve the issues, and
- a nominated time (at least 14 days after the date of the letter) within which the claimant must reply.
If you do not respond, the initiating party’s obligation to follow the pre-action procedure ends.
Where an agreement is not reached after reasonable attempts to resolve it by correspondence, other appropriate action may be taken to resolve the dispute, including filing an application in a court.
Parties to a case have a duty to make timely, full and frank disclosure of all information relevant to the issues in dispute. There may be serious consequences for failing to disclose, including punishment for contempt of court.
In summary, parties should promptly exchange copies of documents in their possession or control relevant to an issue in the dispute before as well as after starting a case. Examples of documents may include:
- a schedule of assets, income and liabilities
- a list of documents in the party’s possession or control that are relevant to the dispute, and
- a copy of any document required by the other party, identified by reference to the list of documents.
In particular, parties are encouraged to refer to the Financial Statement and Rules 4.15, 12.02, 12.05 and 13.04 as a guide to what information to provide and documents to exchange. Rule 13.12 sets out documents that do not need to be produced. These include documents where there is a claim for privilege from disclosure or documents that have already been disclosed and where there has been no change likely to affect the result of the case.
The documents that the Court would consider as appropriate to be exchanged include:
- the party’s taxation return and taxation assessment for the most recent financial year
- the party’s bank records for the previous 12 months
- if the party receives wage or salary payments, the party’s three most recent pay slips
- if the party owns or controls a business, the business’s Business Activity Statements for the previous 12 months, and
- any other document relevant to determining the income, expenses, assets, liabilities and financial resources of the party.
In a property settlement case
- the party’s three most recent taxation returns and assessments
- documents about any relevant superannuation interest, including:
- the completed Superannuation Information Form
- for a self-managed superannuation fund, the trust deed and the last three financial statements
- the value of the superannuation interest, including how the value has been calculated and
- any documents working out the value
- for a corporation (business), trust or partnership where the party has a duty of disclosure under Rule 13.04:
- financial statements for each (including balance sheets, profit and loss accounts, depreciation schedules and taxation returns) for the three last financial years
- for the party or a corporation (business), trust or partnership where the party has a duty of disclosure under Rule 13.04:
- any Business Activity Statements for the 12 months ending immediately before the first court date
- for any corporation, its most recent annual return, listing directors and shareholders; and the corporation’s constitution
- for any trust, the trust deed
- for any partnership, the partnership agreement, including amendments, and
- unless the value is agreed, a market appraisal of any item of property in which a party has an interest
Where a party is unable to produce a document for inspection, it is reasonable for the party to be required to provide written authority authorising a third party (for example, an accountant) to provide a copy of the document to the other party, where this is practicable.
Parties should agree to a reasonable place and time for the documents to be inspected and copied at the cost of the person requesting the copies. Parties must not use a document disclosed by another party for any purpose other than to resolve or determine the dispute for which it was disclosed. That is, in seeking the documents through the pre-action procedure, the party receiving them is considered by the Court to have given an undertaking that they will be used for the specific purposes of the case only.
Where there are disagreements about disclosure, it may be appropriate for an application to be filed with the Court.
As part of the pre-action procedure, you or the other parties may require that information be
sought from an expert witness. There are strict rules about instructing and obtaining reports from an expert.
- An expert must be instructed in writing and must be fully informed of his or her obligations.
- Where possible parties should seek to retain an expert on an issue only where an expert’s evidence is necessary to resolve the dispute.
- Where practicable parties should agree to obtain a report from a single expert instructed by both parties.
- if separate experts‘ reports are obtained, the Court requires the reports to be exchanged.