What do I need to consider before commencing Court Proceedings against my Ex in the Federal Circuit and Family Court of Australia
From 1 September 2021 the Federal Circuit Court and Family Court of Australia has implemented new Pre-Action Procedures that must be adhered to and followed prior to anyone commencing Court proceedings.
The aim of the Pre-Action Procedures are to give the matter a chance at resolving amicably before the pathway of litigation is commenced.
The new Pre-Action Procedures are set out in Schedule 1 of the Federal Circuit Court and Family Court Rules 2001 and include the following:
- Providing the other party with a copy of Schedule 1 Pre-Action Procedures;
- Making enquiries with alternate dispute resolution providers;
- Inviting the other party to attend alternate dispute resolution;
- Attending dispute resolution with the other party and making a genuine effort to resolve the issues in dispute in circumstances where it is safe to do so (i.e considering family violence);
- Advising the other party in writing of your intention to take the next step of commencing Court proceedings within a specific time frame;
- Providing full and frank disclosure of all relevant financial documents in property settlement matters; and
- Providing disclosure of documents relevant to an issue in dispute in parenting matters.
In some circumstances, it may not be appropriate for the Pre-Action Procedures to be complied with. Some possible exemptions that may be applied for or relied on are listed below:
- A child is at risk of family violence, child abuse or neglect or a child is experiencing family violence, child abuse or neglect in parenting matters;
- In property settlement matters, there has been or is family violence occurring;
- The matter is otherwise urgent and requires Court intervention as soon as possible;
- The party making the application would be prejudiced if forced to comply with the Pre-Action Procedures;
- If the matter was in Court less than 12 months ago; and
- The proceedings relate to divorce, nullity or validity of marriage, child support or bankruptcy.
Each party is now required to file a new Court form called Genuine Steps Certificate certifying that they have or have not complied with and followed the Pre-Action Procedures before filing their Application with the Court.
The hope of the Pre-Action Procedures are that matters will resolve amicably without Court intervention, thereby reducing the amount of matters requiring judicial intervention in the Federal Circuit court and Family Court of Australia.
This comes as a result of the system being overhauled and the previous Federal Circuit Court of Australia and Family Court of Australia having merged as at 1 September 2021. Focus remains on alternate dispute resolution and parties are encouraged to take the time to make a genuine effort to resolve their dispute without relying on the limited resources of the Court.
If you are considering commencing Court proceedings and would like more information on the Pre-Action Procedures, please contact the Brisbane family lawyers team at James Noble Law today for a free, no-obligation 20-minute consultation. Schedule an appointment with one of our Qualified and experienced Family lawyers Brisbane.
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