In this series we will discuss the fundamental basics of Family Law, providing information and guidance that may answer questions you have throughout the Family Law process. This week we cover Pre-action procedures: what you need to do before you file.
If you are currently involved in a family law dispute regarding property settlement or children’s matters it is important that you understand that there are “pre-action procedures” which must be followed in most cases before you can commence proceedings in the Family Court of Western Australia.
To commence child related proceedings in the Family Court, the individual wishing to initiate must either attend Family Dispute Resolution (“FDR”) with the other party and obtain a section 60I certificate alternatively they must complete an FDR exemption form which is to be filed with their initiating documents.
Compulsory Family Dispute Resolution
As part of the Family Court’s compulsory pre-action procedures, the parties must attend FDR to attempt to resolve the issues in dispute. It is important when selecting a service for dispute resolution that parties ensure the practitioner is a recognised FDR practitioner. It will typically take the form of a round table discussion where the FDR Practitioner will ask both parties to give a brief opening statement; from there the Practitioner will take you through the issues and facilitate discussions between the parties to attempt to find a resolution.
The FDR practitioner can issue a section 60I certificate in a range of circumstances including the following:
- If one party refuses to attend;
- If the FDR practitioner believes the matter is unsuitable for FDR; alternatively
- If the parties are unable to reach an agreement.
Please note that in the event one individual attends mediation and the other individual declines to attend, that individual will receive a section 60I Certificate and be at liberty to initiate proceedings in the Family Court.
Circumstances where you may be exempt from compliance with pre action procedures in children’s matters
There are circumstances where you may be able to initiate proceedings in the Family Court without attending FDR which are as follows:
- Where the matter is very urgent;
- Where the individual is responding to an application;
- Where you have been unable to participate in FDR;
- Where there is a risk of child abuse or family violence; and
- Where there is an application that alleges a contravention or breach of a parenting Order made less than 12 months ago.
To commence financial proceedings in the Family Court, there are three pre-action procedure requirements that should be complied with:
- Dispute Resolution
In financial disputes, the parties need to attend dispute resolution however it does not have to be
conducted by a FDR practitioner, the dispute resolution can occur through
counselling, negotiation, consultation or arbitration.
- Correspondence to Other Side
In the event that Dispute Resolution is not successful, the party intending to initiate proceedings is
required to write to the other party, outlining the following:
- The outstanding issues in dispute
- What Orders they would seek if proceedings were started,
- An offer to settle; and
- The time within which the other party is required to respond.
Financial Proceedings should not be started unless the other party does not respond or an agreement
cannot be reached after the parties have made a “reasonable attempt” to settle.
- Duty of Disclosure
Pursuant to Rule 13.04 of the Family Law Rules 2004, all parties involved in Family Court proceedings must provide full and frank financial disclosure of their financial circumstances, which includes documents such as bank statements, taxation documents etc.
Circumstances where you may be exempt from compliance with pre action procedures in financial matters
In financial matters some of the circumstances where parties may not have to comply with pre-action procedures that were outlined earlier in relation to children’s matters may also be applicable. Additionally if the other party refuses to negotiate; or where there is a deadline approaching for filing within time, the parties may also be exempt.
If you are considering commencing Family Court proceedings you should seek specific advice from a specialist Family Lawyer.
This is general information only, and does not constitute specific legal advice. If you would like further information in relation to this matter or other legal matters please contact our offices on Freecall 1800 609 945 or email us now.