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Pre-action procedures – what do I need to do before filing in the Federal Circuit and Family Court for property disputes?

Pre-action procedures – what do I need to do before filing in the Federal Circuit and Family Court for property disputes?

Posted On: 3 May

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Before initiating Court proceedings in the Federal Circuit and Family Court of Australia to divide assets parties are required to comply with all pre-action procedures, unless exemptions apply. Pre-action procedures are steps that parties are required to take in an  attempt to resolve a financial dispute before they file an application with the Court. The pre-action procedures for financial disputes are outlined in the Federal Circuit and Family Court of Australia (Family Law) Rules 2021.

It’s important to note that these pre-action procedures are designed to encourage parties to resolve their disputes without the need for court action and to ensure that parties have considered all possible options before proceeding to Court.  These pre-action procedures require and encourage parties to make full and frank disclosure of their financial positions at an early stage, by exchanging information and documents.

The pre-action procedures allow for the efficient management of cases and should provide clarity about the  financial issues in dispute.  Knowing these issues at an early stage can reduce the duration of a family law matter and the financial costs to the parties. This also encourages parties to only seek realistically achievable outcomes.

Exchange of Financial Disclosure

After the breakdown of a relationship, a parties have a duty to provide full and frank disclosure of all financial documents relevant to the issues in dispute.

Documents that are required to be disclosed in relation to a party’s financial circumstances include, but are not limited to:

  • A income including payslips;
  • Bank accounts and credit card statements;
  • Documents with respect to any disposal of property made by a party in the 12 months immediately before separation or since separation;
  • Any liabilities;
  • A party’s 3 most recent taxation returns;
  • A party’s 3 most recent taxation assessments;
  • Superannuation information and member balances;
  • Financial Statements for any company or Trust, and Business Activity Statements.

The pre-action procedures can be summarised in five (5) steps. These are:

Step 1 – Invite the other party to participate in mediation

Where the assets, liabilities and superannuation benefits of the parties need to be divided, before any person considers filing an application with the Court, they must:

  • Provide a copy of the brochure issued by the Court named ‘Before you file – pre-action procedure for financial cases’ and the Court’s Central Practice Direction to the other party; andInvite the other party to participate in mediation.

Step 2 – Agree on a dispute resolution service and attend the service

Once parties agree to mediation, they must make a genuine effort to resolve the dispute by participating in that process. If agreement is reached, it can be formalised by way of a Financial Agreement or Consent Order. Usually the costs associated with the mediator are shared equally between the parties.

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

If parties are unable to reach agreement mediation or a party refuses or fails to participate, a written notice of intention to start proceedings must be sent to the other party setting 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.

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

If you are a party receiving a Notice of Intention to commence proceedings, you must reply in writing starting 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 property 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 property settlement.

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. We will ask you to collate all financial documents relevant to your circumstances.

Exemptions to pre-action procedures

There are some circumstances where it is not appropriate or possible for a party to adhere to the pre-action procedures. Some of those circumstances are:

  • Urgency;
  • Family violence or a risk of family violence;
  • Where there is a genuine concern that the party would be unduly prejudiced or adversely affected if another person to the dispute is given notice of an intention to file an Application.

How we can assist

If you need assistance with your property settlement dispute or have received a notice of intention to commence proceedings from your spouse, 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 office or our Gordon Park office on the Northside of the City.

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