starting family court proceedings

Starting family court proceedings

Starting family court  proceedings. What steps do you need to take beforehand to obtain parenting orders?

In this blog, we look at the situation for Richard who has recently separated from Charlotte and steps they need to take in order to obtain parenting orders. Their example may help you in your situation.

You are also welcome to contact us for fee initial phone advice and assistance with resolving your family law issues. Our experienced Brisbane family lawyers and family lawyers North Brisbane are ready to assist you.

Back to Richard and Charlotte….

They have three children together, aged 11, 8 and 5.  Whilst Richard was actively involved in their care prior to separation, more recently Charlotte had been unwilling for the children to spend any time with him.

Richard has made a few attempts to negotiate parenting arrangements with Charlotte but no agreement has been reached.

Generally: Pre-action procedure

Before starting a case seeking parenting orders, Richard must comply with the required pre-action procedures which are set out in Part 2 of Schedule 1 of the Family Law Rules  2004  (see Rule 1.05 FLR).

Section 60I certificate

As a result of  Section 60I of the Family Law Act 1975 (Cth) (“FLA”), unless one of exceptions specified in that section apply, Richard will have to obtain a certificate pursuant to s. 60I (8) FLA before the Family Court of Australia or the Federal Circuit Court of Australia will hear any application he may make seeking parenting orders under Part VII of FLA.

Richard must first attempt family dispute resolution even if for certain reasons no actual meeting is held, for example, if Charlotte refuses to attend or in the event that the family dispute resolution practitioner determined having regard to the matters prescribed by the regulations that it would not be appropriate to conduct the proposed family dispute resolution.

The Court may accept that it is not possible or appropriate for Richard to follow the pre-action procedures if certain circumstances were to apply. In that case, he would not need to do so including that he would not need to obtain a section 60I certificate.  Those circumstances where he would not need to follow the pre-action procedures include:

  • If circumstances of urgency rose (for example, if Charlotte threatened to relocate the children interstate or overseas); and
  • If there was a genuinely intractable dispute with Charlotte (for example, if she was refusing to negotiate).

Where agreement is reached: Parenting Plan or Consent Orders

If an agreement is reached whether at family dispute resolution meeting, mediation or otherwise, Richard and Charlotte may enter into a Parenting Plan or apply to Court (by application made through the Registry of the Family Court of Australia) seeking consent orders.

Where no agreement is reached:

Notice of Claim

Before Richard initiates any court proceeding, he must give Charlotte a notice of claim being written notice of his intention to commence proceedings, setting out:

  • The issues in dispute;
  • The orders that he will seek if he commences proceedings;
  • A genuine offer to resolve issues;
  • A nominated time which must be at least 14 days after the date of the letter within which Charlotte is to provide her reply.

Reply to the Notice of Claim

Charlotte must then reply to the Notice of Claim within the nominated time advising whether Richard’s offer is accepted. Where agreement is reached, that agreement may then be documented by way of a parenting plan or a Consent order.

If Charlotte does not accept Richard’s offer, she must respond to the Notice of Claim and providing certain things including providing a genuine counter offer to resolve the issues and nominating a time (which must not be less than 14 days) within which Richard must reply.

If Charlotte does not respond, Richard has no further obligation to follow the pre-action procedures.

Richard should consider any counter offer and make reasonable endeavours to reach agreement. However, if no agreement is reached after reasonable attempts are made to resolve issues in dispute, Richard may initiate proceedings seeking parenting orders.

If you need assistance with parenting arrangements for your children, contact our family lawyers Brisbane or family lawyer northside. We are ready to assist you with all of your family law needs.

Christmas for separated families

Pre-action procedures to take before you go to family court for property orders

Steps and pre-action procedures to take before you to go to family court for property orders!

Depending upon your situation, going to family court may be a sensible step for you to take although at LGM Family Law, we seek to keep our clients out of court and assist them to reach an amicable family law property settlement with their former partners.

The family court process is a long one. It is not uncommon for it to take some 2 years or longer from the date that someone starts a legal proceeding to obtain final orders following a trial.  Apart from the legal costs that are incurred, there  is also to consider the emotional cost of taking a legal action and the time away from your employment or business that is involved. Starting a legal action then is not a decision to take lightly.

Contact our Brisbane family lawyers and family lawyers Northside if you would like to speak to one of our experienced family law property settlement lawyers. We offer free initial phone consultations  and are ready to advise you what options are open to you and steps you will need to take for family law property settlement. Otherwise, you are welcome to read on about pre-action procedures….

in this blog, we talk about Richard and Charlotte. They have separated a few months ago and there is no chance of a reconciliation.  Richard is having trouble agreeing with Charlotte about what arrangements they will make to settle property between them. They seem to be very far apart in terms of what they each think would be a fair family law property settlement for each of them.

Richard feels a bit exasperated by this as he has had legal advice concerning what would be a just and equitable settlement in their circumstances.  The trouble is that Charlotte claims to also have had legal advice and yet she is insisting on a much higher settlement in her favour than Richard’s lawyers suggested she could expect.

Richard is thinking that all he can do then is to go to family court so that a judge may decide their case.This kind of situation is not uncommon. A former couple can receive quite different advice from each of their lawyers about what property they are entitled to receive or retain in a family law property settlement, often as a result of different views of the people involved as to what they contributed during the relationship and what needs they have going forward.   

First steps towards taking an action in the Family Court of Australia 

Richard will need to know what steps he has to take before he brings an action in the Family Court of Australia.  These steps are also know as pre-action procedures.

Before Richard starts any family law property proceedings in the Family Court of Australia, unless an exemption under Rule 1.05 (2) Family Law Rules 2004 (“FLR”) applies, Richard must comply with pre-action procedures set out in Part 1 of Schedule 1 of the FLR (see Rule 1.05 FLR) (“Part 1”) by:

  1. participating in dispute resolution, such as negotiation, conciliation, arbitration and counselling;
  2. giving Charlotte a notice of intention to claim and exploring options for settlement by correspondence; and
  • complying, as far as practicable, with the duty of disclosure.

Where Richard is considering filing an action in the Family Court of Australia, other first steps for him to take or pre-action procedures  involve:

  1. giving a copy of the pre-action procedures to Charlotte by providing her with a copy of the FCA brochure “Before you file- pre-action procedure for financial cases” (“FCA Brochure”);
  2. making inquiries about the dispute resolution services available; and
  3. inviting Charlotte to participate in a dispute resolution with an identified person or organisation or other person or organisation to be agreed.

Co-operation and genuine effort required

Both Richard and Charlotte, another pre-action procedure requires that he must(item 3 (2), Part 1):

  1. co-operate for the cooperate for the purpose of agreeing on an appropriate dispute resolution service; and
  2. make a genuine effort to resolve the dispute by participating in dispute resolution.

Written notice of issues and future intention

Before filing an application, under item 3 (4), Part 1, as a proposed applicant, Richard must give to Charlotte written notice of his intention to start a case if:

  1. no appropriate dispute resolution service is available;
  2. a party fails or refuses to participate in dispute resolution; or
  • agreement is not reached by dispute resolution.

That notice must set out:

  1. the issues in dispute;
  2. the orders to be sought if a case is started;
  • a genuine offer to resolve the issues;
  1. a nominated time (that is at least 14 days after the date of the letter) within which Charlotte is required to reply to the notice.

Richard must attach a copy of the FCA brochure to the notice.

Disclosure and exchange of correspondence

Richard must make full and frank disclosure of all information relevant to the issues in dispute in a timely manner (see rule 13.01 FLR) (other than documents that may be subject to a claim for privilege).This obligation applies even if Richard and Charlotte reach an amicable family law property settlement without going to court.

Richard must exchange with Charlotte:

(a)  a schedule of assets, income and liabilities;

(b)  a list of documents in his possession or control relevant to the dispute; and

(c)  a copy of any document required by Charlotte, identified by reference to the list of documents.

Expert Witnesses 

Richard may require that information is sought from an expert witness as may be required for furthering his case.

First Steps towards taking an action in the Federal Circuit Court of Australia

Before Richard starts any family law property settlement proceedings in the Federal Circuit Court of Australia, he should observe the pre-action procedures.  Although practice and procedure of the Federal Circuit Court of Australia is to be in accordance with the Federal Circuit Court Rules 2001 (Cth) (“FCCR”), the FLR may be applied in the Federal Circuit Court of Australia if, in relation to a matter of practice or procedure, the FCCR are insufficient or inappropriate in any case. (Refer Section 43(2) of the Federal Circuit Court Act 1999 (Cth); r 1.05(2) FCCR). (see Thompson & Berg [ 2014] FamCAFC 73 (2 May 2014))

 Contact our Brisbane family lawyers and family lawyers Northside if you require an amicable family law property settlement or are are thinking that you may need to go to family court. We can advise you about what options are open to you and guide you through the court process if you do decide that you will go to family court.