Author

Alan Weiss

31st March, 2020

Alan Weiss developed aussiedivorce.com.au after he experienced himself how devastating divorce proceedings can be. I witnessed firsthand my own future security, and that of my familys, being destroyed by acrimonious and costly divorce litigation. I created aussiedivorce.com.au to help people avoid an experience like this and lose thousands of dollars. Instead the aussiedivorce.com.au system will assist them in getting on with their lives.

Applying to the Family Court for financial orders

Rule 1.05 of the Family Law Rules 2004 (Cth) outlines that before a case is started all prospective parties to the case must adhere to pre-action procedures which are laid out in Schedule 1, which includes attempts at resolving the dispute by use of primary dispute resolution techniques. No application can be made in the Family Court unless the specific court rules are complied with. These pre-action procedures are applicable to matters dealt with in the Family Court and not the Federal Circuit Court. 

The pre-action procedure - Lawyers’ Obligations

The pre-action procedures mean there are obligations on the part of the lawyers to give advice to their clients (Sch 1, Pt 1, cl 6 FLR) regarding the obligations of the pre- action procedure, from the initial consultation with the client. Schedule 1, Pt 1 cl 6(1) FLR lays out lawyers’ obligations.

Lawyers’ clients need to be advised on the following:

  • probable settlement outcomes and possible techniques for a non-legal resolution
  • If it is in the client’s best interests to agree to a compromise or a settlement, if, in the opinion of lawyer the compromise or settlement is fair;
  • the client's disclosure duty
  • an estimate of the legal action’s cost
  • likely  costs orders that the Family Court could make
  • documents that are prepared by the Family Court relating to Legal Aid and services available for primary dispute resolutions.
  • If the client is not prepared  to disclose a document or fact that is relevant to the case, then the lawyer should no longer represent the client.

There is a pre-action procedure financial which includes maintenance and property and maintenance and matters related to parenting matters. Property issues often present the most obstacles.

Pre-action Procedures in Financial Issues

Before an application is made in the Family Court, each of the prospective parties must make an attempt at settling the matter.

This involves:

  • the use of formal dispute resolution methods which could be mediation, negotiation, arbitration, conciliation or counselling;

the lawyer informing each of the prospective parties in writing of his or her intention to lodge an application unless correspondence can resolve the matter;

  • complying as much as possible with the duty of disclosure laid out in Ch 13 of the Family Law Rules.

Pre-action procedures are usually compulsory and costs orders can be awarded to not just the party in breach, but the solicitor too: Sch 1, Pt 1, cl 1(2) and 1(3) FLR.

Throughout the case the lawyer is expected to prioritise:

  • protecting any children’s best interests;
  • making sure  that the costs associated with the matter represent the value of the claim;
  • making sure that the parties as an outcome of pre-action procedures do not participate in hostile and inflammatory behaviour;

Ensuring that the client is aware of their obligations when it comes to duty of  disclosure

The pre action procedures requires that the lawyer sends a letter out to each of the prospective parties enclosing the ‘Before You File – Pre-action Procedure for Financial Cases

The letter must  also contain an invitation for the prospective party to try to resolve the matter by attending a primary dispute resolution meeting. This could be a “round-table conference” bringing together relevant parties. Each of the prospective parties is obligated to make a reasonable effort at resolving the issues by taking part in primary dispute resolution. If it is possible to work out an agreement then a Form 11, Application for Consent Orders and Terms of Settlement can be filed.

If the lawyer does not get a response or the primary dispute resolution method fails, then an additional letter has to be sent to each of the prospective parties advising them of the issues that are said to be in dispute. The lawyer will then offer a genuine settlement and a notice stating that if there is non acceptance of the offer the lawyer will file an application in the court with the details of the orders that he or she will be seeking in that application; an a time given to comply with the offer that is a date no less than 14 days from that of the letter.

The proposed respondent must respond in writing and either: accept the offer or state the issues which they think are under dispute, and propose a counter- offer with a time given to respond, which is a date that is no less than 14 days from the counter offer date. An application can be filed  only if there is lack of response from the respondent; or no form of negotiation can reach an agreement.

When the correspondence is prepared and in order to comply with pre-action procedures, the lawyer should make note of the requirements for disclosure of document under r 13.04 of the FLR. The lawyer should get essential information from the prospective parties such as:

  • a schedule of income, assets and liabilities;
  • a list of all relevant documents that each party possesses or exerts control over
  • copies of documents that have been requested by the other party;
  • a request to obtain copies of documents that are held by the other party or the authority to inspect documents that are in the possession of a third party.

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