Following separation there are many decisions to be made including who will continue to live in the family home and who will move out, what arrangements will be in place for the children, what the property settlement will look like and who gets to keep the dog.
For some couples, these matters can be agreed upon quickly and without too much stress, however sometimes people require assistance from a lawyer, mediator or the Court to resolve disputes following a separation.
On 1 September 2021 the Federal Circuit and Family Court Rules 2021 came into effect. These rules have created an overarching principle and obligation upon litigants to ensure that they use their best endeavours to negotiate an agreement before commencing Court proceedings. This includes attendance at a dispute resolution process, such as mediation or conciliation.
These obligations are known as pre-action procedures and must be complied with before Court proceedings are commenced. The pre-action procedures require parties to attend to the following:
1. If it safe to do so, provide the other party with a copy of the pre-action procedures (found here parenting or property), make enquiries with respect to dispute resolution processes (such as mediation), and invite the other party to participate in dispute resolution;
2. Attend a dispute resolution process and make a genuine effort to resolve the dispute. If an agreement is reached at dispute resolution, steps can be taken to formalise the agreement. Parties should seek advice from a specialist family lawyer to assist them in formalising agreements to ensure that it is understood and can be implemented.
3. If an agreement cannot be reached at dispute resolution and it is intended that Court proceedings will be commenced, the first step is to place the other party on notice, in writing, of the intention to go to Court. The notice should set out:
a. The issues in dispute;
b. The Orders that will be sought from the Court;
c. A genuine offer to resolve the issues in dispute; and
d. A timeframe in which a response is to be provided. This should not be less than 14 days.
If the other party responds, it is expected by the Court that a reasonable attempt will be made to engage in a discussion and negotiation prior to commencing Court proceedings.
4. Where an agreement cannot be reached, and proceedings are commenced, a Genuine Steps Certificate will need to be filed outlining that the pre-action procedures have been complied with.
A failure to comply with the pre-action procedures will be taken seriously by the Court and places litigants at risk of their application being dismissed and/or a costs order being made against them.
It is important that you have attended to the above before you commence Court proceedings, unless you meet one of the limited exemptions. There are some circumstances where it would not be appropriate to comply with the pre-action procedures, such as if it is unsafe for parties to attend dispute resolution, or if Court proceedings are required to be commenced urgently. Advice should be sought from a specialist family law solicitor before seeking to dispense with (or ignore) the pre-action procedures.
As family law solicitors, we at Robinson + McGuinness will be able to advise you in relation to your rights and entitlements and assist you to finalise matters following separation. We will also be able to assist you to ensure that you have met your obligations to comply with the pre-action procedures prior to commencing Court proceedings.
Divorce and separation can be incredibly stressful and you should obtain expert advice early to point you in the right direction.
Author: Peta Sutton, Associate