Before commencing Court proceedings in relation to parenting arrangements, parents or care providers are required to comply with all pre-action procedures (unless exemptions apply). These pre-action proceedings are provided for in the Federal Circuit and Family Court (Family Law) Rules 2021.

When are you exempt?

Section 60I(9) of the Family Law Act 1975 outlines when a party is or can seek an exemption from complying with the pre-action procedures. These circumstances are:

• If your matter is urgent;
• The Court is satisfied that there are reasonable grounds to believe that:
  • there has been child abuse and/or family violence;
  • there is a risk of family violence;
  • there is a risk of child abuse if there was to be a delay in applying to the Court.
• If a party is unable to participate effectively in Family Dispute Resolution (FDR). For example, if a party does not have legal capacity;
• If your application relates to an alleged contravention of a Parenting Order which has been made by the Court within the last 12 months.

Why do I need to comply?

The pre-action procedures are designed to encourage parties to help resolve their differences quickly and fairly to avoid legal action where possible. This will limit the legal costs and hopefully avoid the need to start Court proceedings. Where an agreement can be reached out of Court, parents and care providers are given certainty of the care arrangements for the children moving forward and importantly, children are not involved in protracted litigation. Outlining the issues in dispute, making offers and/or attending mediation or FDR can assist parties to narrow the issues in dispute, giving them the best opportunity to control the direction of the parenting matter and the outcomes.

Pre-action procedures in parenting matters can be summarised in five (5) steps:

Step 1 – Participate in Family Dispute Resolution

Family Dispute Resolution (FDR) is a form of mediation which is facilitated by an independent and registered Family Dispute Resolution Practitioner (FDRP). FDR is a practical way for parents to try and resolve any disagreements and parenting arrangements for their children without a Judge needing to decide on what parenting orders are in the best interests of their children.

Step 2 – Enter into a Parenting Plan or Consent Orders

If an agreement is reached either before or during a FDR process, parents or care providers can formalise their agreement by entering into a Parenting Plan or file the proposed terms with the Court asking that they be approve the terms and make Consent Orders.

Step 3 – Provide the other parent with your written Notice of Intention to Commence Proceedings

If parents are unable to reach agreement through a dispute resolution process or a parent refuses or fails to participate in mediation, a written notice of intention to start proceedings must be sent to the other parent before an application is made to the Court. This Notice of Intention to Commence proceedings is required to set out:

• The issues in dispute;
• The Orders sought if an application is filed with the Court;
• A genuine offer to resolve the issues in dispute; and
• Allowing at least 14 days for the other party to respond.

A copy of the brochure issued by the Court named ‘Before you file – pre-action procedure for parenting cases’ must be provided with the Notice of Intention to Commence Proceedings. Parents or care providers who are self-represented need to be given a copy of the Court issued Central Practice Direction.

Step 4 – Reply to the Notice of Intention to Commence Proceedings

If you are a parent or care provider receiving a Notice of Intention to commence proceedings, you must reply in writing stating whether the offer is accepted within the nominated timeframe. If you do not accept the offer, you must set out in your reply the following:

• The issues in dispute;
• The Orders you will seek if a proceeding is started;
• A genuine counter-offer to resolve the issues in dispute; and
• Allowing at least 14 days for the other party to respond.

Step 5 – Application with the Court

If there have been reasonable attempts to resolve a parenting dispute and the pre-action procedures have been complied with, you are able to file an Initiating Application and supporting documents with the Federal Circuit and Family Court of Australia in relation to your parenting matter.

During our initial consultation with you, we focus in on these pre-action procedures and provide you with the necessary “homework” relevant to your case to start work on these pre-action procedures. From this consultation, we can gain a better understanding of your situation and guide you in the right direction to commence negotiations with the other parent and moving forward to FDR and Court, if necessary.

How we can assist

If you need assistance with your parenting dispute, or have received a notice of intention to commence proceedings from the other parent or care provider, we recommend that you contact our office on (07) 3532 3826 or info@pcfl.com.au to seek legal advice from one of our experienced Brisbane family lawyers.  We offer fixed fee initial consultations and are available to meet you in our Brisbane City or Gordon Park office, on the north side of Brisbane.