Family Law Court: What You Must Do Before Filing in Australia

Before you are permitted to institute formal proceedings in the Federal Circuit and Family Court of Australia, and where it is safe to do so, you must comply with the Pre-Action Procedures. There may be consequences for non-compliance with the pre-action procedures. Accordingly, it is important that you obtain advice from a Specialist Family Lawyer prior to commencing proceedings in Court.

Attempt to Resolve the Dispute

• Parties are expected to try and resolve the issues before filing an Application in Court. Parties are generally required to attempt mediation, where it is safe to do so. This process allows both parties to discuss their issues, have their voice heard and raise their perspective, with the assistance of a neutral third party, the mediator.
• For parenting matters, parties are required to attend a Family Dispute Resolution Conference and obtain a Section 60i Certificate before filing an Application in Court.

Exchange of Information

• Financial Disclosure: In property/financial disputes, each party must disclose financial information to the other. There is an obligation on each party to disclose all information that is relevant to the issues in dispute. This typically includes details of income, assets, liabilities, and other financial matters that are relevant. Ultimately, all documents must be disclosed that will allow the other party to understand your financial position. This is a positive obligation, meaning that even if a certain document is not requested, you must still provide it if it is relevant to the issues in dispute. This ensures transparency and fairness before going to court.
• Parenting: In parenting disputes, each party must disclose all relevant documents to the other. This may include producing expert reports or test results.

Section 60I Certificate – Certificate of Attending Family Dispute Resolution

• If Family Dispute Resolution is unsuccessful, the mediator will issue a Section 60i Certificate, which is required when filing an application in court for parenting orders. This certificate indicates that attempts to resolve the dispute through FDR have been made but were unsuccessful.

Consideration of Family Violence or Child Abuse

• There are exceptions to strict compliance with the Pre-Action Procedures in circumstances where there are family violence or child abuse allegations. The parties may not need to attend mediation or family dispute resolution if they can show that there is a risk to safety.
• Alternatively, there may be ways to facilitate compliance with the Pre-Action Procedures by implementing further barriers to protect individuals. This may include having an online mediation (rather than in person), or perhaps having a shuttle mediation, so that you and your former partner do not come face to face.

Issuing a Formal Letter

• Before commencing proceedings in Court, a party is required to notify the other party that they will be commencing those proceedings. The notice must outline the issues in dispute, a proposal to resolve the dispute and an outline of what they will seek should the proceedings be commenced.

Filing an Application

• If all attempts to resolve the matter outside of court fail, a party may file an application with the Federal Circuit and Family Court of Australia.