The pre-action procedures are the things that parties are required to attend to before filing an Application in the Federal Circuit Family Court of Australia.
These requirements are set out at Schedule 1 of the Federal Circuit and Family Court of Australia Rules 2021.
A person considering filing an Application with the Court must comply with the following pre-action procedures:
Give a copy of the pre-action procedures to the other party;
Make an enquiry about the dispute resolution services available (such as mediation) and invite the other party to attend;
Where it is safe to do so parties must make a genuine attempt to resolve their dispute at dispute resolution. If the parties do reach an agreement, they may file an Application for Consent Orders to formalise their agreement and avoid litigation;
Give the other party written notice of an intention to commence proceedings; and
Exchange copies of all relevant documents to the other party.
The objectives of the pre-action procedures are to:
Encourage early and full disclosure of relevant information and documents that will be relevant in the prospective proceedings;
Provide parties with a process to achieve settlement before commencing proceedings;
Provide the parties with a process to resolve their dispute quickly and limit costs;
Facilitate efficient effective management of the matter in Court if proceedings do become necessary;
Encourage parties to, if proceedings become necessary, only seek Orders from the Court that are achievable on the evidence.
Give effect to the overarching purpose of the family law practice and procedure provisions which refer to the “just resolution of disputes according to the law as quickly, inexpensively and efficiently as possible”.
Abide by the principal of proportionality and the need to keep costs in proportion to the financial value of the subject matter in dispute;
In parenting proceedings, the pre-action procedures require parties to have regard to:
The best interests of children including the need to protect children from harm;
Facilitating a meaningful relationship between a parent and a child if it is safe to do so;
The potential damage to a child involved in a dispute between parents, particularly if the child is asked to take sides;
The best way of exploring options for settlement, identifying issues as soon as possible and seeking to resolve them;
The need to avoid protracted, unnecessary, hostile and inflammatory exchanges and the need to consider the impact of correspondence on the intended reader;
The need to seek Orders only when they are achievable on the evidence consistent with the law.
Parties must not use the pre-action procedures for an improper purpose such as to harass the other party or delay the proceedings. Parties must also refrain from engaging in correspondence that raises irrelevant issues or issues that may cause the other party to become entrenched, or hostile.
Do I have to comply with the pre-action procedures?
It is mandatory to comply with the pre-action procedures unless it is not safe to do so, or if reasonable attempts to comply have been made but have not resulted in a satisfactory solution.
If proceedings are commenced, the Court may take into account any non-compliance with pre-action procedures. There may be serious consequences for non-compliance including costs penalties and/or having your Application to the Court stayed (put on hold) until compliance has been achieved. Some examples of non-compliance include:
Not sending written notice to the other party of your intention to commence proceedings;
Not providing the other party sufficient disclosure of information and documents;
Not responding to reply within a reasonable time to requests for information and documents;
Failing to participate in mediation where it would have been appropriate to do so.
What is a Genuine Steps Certificate?
When filing in the Court you will be required to complete a form (called a Genuine Steps Certificate) that identifies whether you have attempted to take the appropriate steps (or whether you say an exemption should apply to you.) It will ask you confirm that you have complied with the pre-action procedures and ask you to confirm whether that you have made a genuine attempt to resolve the dispute prior to commencing proceedings.
If an exemption does not apply to you, it is open to the Court to stay (essentially to put on hold) your application and require you to attend to the pre-action procedures before the Court will make orders or progress your matter in the Court system. Sometimes there are costs consequences for not following the pre-action procedures. The other party may ask the Court to make an order for you to pay some of the other party’s costs if you have not followed the procedures and you do not qualify for an exemption.
What is the difference between a Genuine Steps Certificate and a section 60i certificate?
A Genuine Steps Certificate is required for both financial and parenting Applications. A Section 60i certificate, however, is only required prior to commencing parenting proceedings.
The purpose of a Section 60i certificate is to ensure that before parties file a parenting application in the Court, they have attempted to resolve the issues through family dispute resolution, where it is appropriate. Only an accredited Family Law Dispute Resolution Practitioner can issue a section 60i certificate. The certificate issued will confirm one of the following:
That the parties did not attend family dispute resolution due to the refusal or failure of the other party to attend; or
The parties did not attend dispute resolution because the Dispute Resolution Practitioner determined that it was not appropriate to do so;
The parties attended dispute resolution and made a genuine attempt to resolve their dispute;
The parties attended dispute resolution and one or both parties did not make a genuine attempt to resolve the dispute; or
The parties began participating in a dispute resolution conference but part way through, the Dispute Resolution Practitioner determined it was not appropriate to proceed.
More information about the pre action procedures and Section 60i certificates is available on the Federal Circuit Family Court of Australia website – here
This article is not legal advice and cannot be relied on as legal advice.