Whether you’ve got a dispute about parenting and custody matters or property settlement, we recommend the first step should always be to seek legal advice.
Find a local solicitor that specialises in family law matters who can give you expert guidance based on your particular circumstances. Our family law solicitors are experienced in every aspect of family law including difficult parenting matters and complex property settlements. Our solicitors can guide you through all of the stages and processes to obtain the best resolution available.
Pre Action-Procedures and Dispute Resolution
The courts have recently placed increased emphasis on the parties’ engaging in dispute resolution and taking genuine steps to resolve their dispute before filing at court. While many of these same measures were encouraged under the previous Family Court system, the court now has a more proactive position in assessing and enforcing compliance with these procedures at first court mention.
Whether it’s parenting or property disputes, the court now requires that the parties participate in at least one form of dispute resolution. Dispute resolution could be something such as attending mediation or a family dispute resolution conference, either with or without the assistance of lawyers.
In parenting matters, before a party can file, they must obtain a Section 60I certificate under the Family Law Act. That certificate must be obtained by a qualified family dispute resolution practitioner and state that:-
- Either one or both parties attended mediation and made a genuine effort to resolve the dispute; or
- The parties attended mediation but one or both parties did not make a genuine effort to resolve the dispute; or
- The parties did not attend mediation because the family dispute practitioner considered the matter inappropriate for mediation; or
- One of the parties refused to attend mediation.
In the event that your matter wasn’t resolved by way of dispute resolution, any party that is considering commencing proceedings must now provide the other party or parties with written notice of their intention to commence proceedings. This is known as a Notice of Intention to Start a Proceeding. A Notice of Intention to Start a Proceeding must set out the following matters:-
- The issues in dispute between the parties; and
- The orders that will be sought if proceedings are commenced; and
- It should contain a genuine offer to resolve the issues, such as a settlement; and
- It must provide a time for the other party to reply that is at least 14 days after the Notice has been received by the other party.
Disclosure and other pre-action procedures
The Family Law Act 1975 provides that parties to a dispute have a duty to make timely, full and frank disclosure of all the information that may be relevant to the issue in dispute, including disclosure as to each party’s financial position, particularly if it is a property settlement. The rules require that, as soon as practicable after learning that there is a dispute, each party exchange the following documents:-
- A schedule of assets, income and liabilities;
- A list of documents in each party’s possession or control that are relevant to the dispute such as tax returns, bank statements, superannuation statements, property or motor vehicle valuation and appraisals, details of inheritances and company and trust financial statements; and
- A copy of any document required by the other party identified by reference to the list of documents.
In parenting matters, copies of documents in their possession or control relevant to the issue, for example, medical reports, school reports, letters, drawings and photographs.
Once the parties have completed that exchange, those documents can be recorded and a further document called a Genuine Steps Certificate which needs to be filed with the Initiating Application and supporting affidavit. Parties who do not comply with the pre-action procedures now run a significant risk of cost penalties.
Speak to one of our experienced family lawyers about all aspects of pre action procedures, compliance and disclosure before you commence proceedings. Get the best advice and guidance for your family law matter.
McCormick Family Law services the Redlands including Alexandra Hills, Mount Cotton, Redland Bay, Victoria Point, Birkdale, Ormiston, Sheldon, Thornlands and Wellington Point.