In a parenting or property dispute, couples can reach an agreement without going to court.

Avoiding litigation can be done by reaching out to the other party to come into agreement regarding the case.

The law will require you to take advantage of a pre-action procedure as it is the policy of the state to settle a family related case amicably. While the purpose of the pre-action procedure is to avoid litigation, it is advisable to seek legal advice from a lawyer so that you will be guided accordingly during the negotiation, conciliation, or settlement of your case.

Under the Family Law Rules 2004 (FLR), the pre-action procedure must strictly be observed. Each prospective party to a case in the Family Court of Australia is required to make a genuine effort to resolve the dispute before starting a case. (Part 1, Schedule 1 of FLR) You have to take note of this because it might not be necessary for you to go to court to litigate your case. An early settlement of the controversy will avoid you to any inconvenience that the case may offer.

This genuine effort may refer to participating in dispute resolution, such as negotiation, conciliation, arbitration and counselling. By that, you will have an opportunity to negotiate and tell to the opposing party what you want. In here, a possible settlement of the case may happen, and thus it will save you from cost in hiring a lawyer to litigate your case.

Objective of pre-action procedure

As already stated, the general purpose of pre-action procedures is to avoid litigation and to avoid you from spending time in court to prove your case. The Family Law Rule 2004 provides that the objects of these pre-action procedures are:

  • (a)to encourage early and full disclosure in appropriate cases by the exchange of information and documents about the prospective case;
  • (b)to provide parties with a process to help them avoid legal action by reaching a settlement of the dispute before starting a case;
  • (c)to provide parties with a procedure to resolve the case quickly and limit costs;
  • (d)to help the efficient management of the case, if a case becomes necessary (that is, parties who have followed the pre-action procedure should be able to clearly identify the real issues which should help to reduce the duration and cost of the case); and
  • (e)To encourage parties, if a case becomes necessary, to seek only those orders that are reasonably achievable on the evidence.

Effect of not observing pre-action procedures

The effect of not observing a pre-action procedure is not a ground to dismiss your case. However, there are adverse effects if you will not observe this procedure. You will likely to suffer the serious consequences, including cost and penalties for non-compliance with the pre-action requirements.

The most common consequence in not complying with the pre-action procedures is a delay in the disposition of your case. It may take time for your case to reach the trial stage.

If you have not observed this procedure, the judge may order you to comply first the pre-action procedure. Only then if after complying with the procedure, that the effort proves to be futile and not effective because you and the other party cannot come into an agreement that the court will entertain the case for trial.

When not necessary

It should be noted, however, that you may not be required to observe the pre-action procedures in some instances. These are the instances where strict adherence to the pre-action procedure will cause irreparable injury to you. Compliance with the pre-action procedure is not necessary if:

  • (a)for a parenting case--the case involves allegations of child abuse or family violence or the risk of child abuse or family violence;
  • (b)for a property case--the case involves allegations of family violence, or the risk of family violence, or fraud;
  • (c)the application is urgent;
  • (d)the applicant would be unduly prejudiced;
  • (e)there has been a previous application in the same cause of action in the 12 months immediately before the start of the case;
  • (f)the case is an application for divorce;
  • (g)the case is a child support application or appeal; or
  • (h)The case involves a court’s jurisdiction in bankruptcy under section 35 or 35B of the Bankruptcy Act. (Schedule 1, FLA)

If any of the enumerated instances apply to your case, you may directly file your complaint or application with the court without complying with the pre-action procedure.

It is however important that it is necessary for you to allege in your application the reason why you did not comply with the pre-action requirement so that the court will immediately take action to your case to the trial.