Steps and 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.  Legal costs can be expected to easily exceed $50,000 to $80,000 by the time you get to that point. 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.

Let’s 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 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 settlement 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).

He 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 that apply in the Family Court of Australia.  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 have family law issues or 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.