If you’re facing a family law issue in Australia, you’ve likely come across the term “pre-action procedures.” Pre-action procedures are a set of steps that both parties must follow before they can start court proceedings in family law.
They are designed to help resolve family disputes without the need for a lengthy and expensive court process.
But what does this mean, and why is it such an important part of the process? Before taking your matter to court, there are specific steps designed to encourage resolution without the need for a formal hearing.
These steps aim to save time, reduce costs, and avoid the emotional toll that court battles can bring. Let’s get into the details of everything you need to know about pre-action procedures.
What Are Pre-Action Procedures in Family Law?
The idea behind these procedures is to give both parties a chance to settle their differences through negotiation, mediation, or other forms of discussion. The Australian family law system encourages people to try to reach an agreement on their own before going to court, as this is often quicker, less stressful, and less costly.
Pre-action procedures are used in family law cases that deal with parenting arrangements, property settlements, and divorce. They aim to:
- Encourage early settlement.
- Ensure that parties exchange information and documents.
- Help parties avoid unnecessary legal costs.
- Allow the court to focus only on cases that truly need a judge’s decision.
By following these steps, many families can avoid court entirely, resolving their issues in a way that works best for everyone involved.
Do I Need to Follow Pre-Action Procedures Before Filing for Divorce?
In most cases, yes, you need to follow pre-action procedures before filing for divorce or starting any other type of family law case. This applies whether you’re dealing with child custody (parenting orders), property settlements, or other family law matters.
Divorce and Parenting Orders
If you’re filing for divorce and there are children involved, pre-action procedures are particularly important. The law requires both parents to try to agree on child custody arrangements before going to court. Mediation is a common part of this process, where a neutral mediator helps parents work out an agreement that’s best for the children.
If both parties can agree on the parenting arrangements, they can avoid the need for a court hearing. However, if you’re unable to agree, you will need a certificate from an accredited family dispute resolution practitioner to show that you have attempted mediation before you can proceed with court.
Property Settlements
For property settlements, pre-action procedures also come into play. Both parties are expected to exchange financial information and try to reach an agreement through negotiation.
If an agreement is reached, it can be formalised in writing through consent orders, which can be approved by the court without the need for a hearing.
Skipping these steps can result in delays, and the court may refuse to hear your case until you have completed the required procedures.
What Are the Key Requirements of Pre-Action Procedures?
Pre-action procedures have specific requirements that both parties must follow. Here’s a closer look at the main steps involved:
1. Negotiation and Mediation
Negotiation is the first step in pre-action procedures. The aim is for both parties to discuss their differences and try to come to a resolution. This can happen directly between the parties or through their lawyers.
If negotiation doesn’t work, the next step is mediation. Mediation is a process where both parties sit down with an impartial mediator to try to reach an agreement. The mediator does not make decisions for you but helps guide the discussion so that both parties can work towards a solution.
2. Disclosure
Another key requirement is the disclosure of important documents and information. This means that both parties must provide all relevant financial information, including bank statements, pay slips, and tax returns.
In parenting matters, disclosure may involve sharing information about the child’s health, education, and general well-being.
Disclosure ensures that both parties are fully informed when negotiating, which helps lead to fair agreements.
3. Genuine Effort
When following pre-action procedures, both parties are expected to make a “genuine effort” to resolve the dispute. This means that you need to engage in the process with an open mind and a willingness to find solutions.
The court will take into account whether you have made a real attempt to settle the dispute before going to court.
Are There Any Exemptions to Pre-Action Procedures?
There are some situations where pre-action procedures may not be required. These exemptions are in place to protect individuals from harm or unnecessary delays in urgent cases.
1. Urgency
In some cases, the situation may be urgent, and there is no time to go through pre-action procedures. For example, if a parent is planning to move interstate or overseas with a child without the other parent’s permission, you may need to go directly to court to prevent the move.
2. Family Violence or Safety Concerns
If there is family violence or a risk to your safety, you may be exempt from pre-action procedures. In these cases, the court recognises that it may not be appropriate or safe to negotiate or attend mediation with the other party. The safety of all parties, especially children, is the court’s top priority, and these procedures will not be enforced if they put anyone in danger.
3. Unreasonable Refusal to Negotiate
If the other party is refusing to negotiate or attend mediation without a valid reason, the court may allow you to proceed without completing the pre-action steps. However, this will be carefully reviewed, and you will need to show evidence of the other party’s refusal.
What Happens if Pre-Action Procedures Are Not Followed?
Failing to follow pre-action procedures can have serious consequences. The court takes these requirements seriously and expects both parties to comply unless they have a valid exemption.
Delays in Court Proceedings: If you don’t follow pre-action procedures, the court may refuse to hear your case until you have completed them. This can lead to significant delays in resolving your dispute, adding more time, stress, and costs to the process.
Penalties: In some cases, the court may impose penalties on parties who don’t comply with pre-action procedures. This can include being ordered to pay the other party’s legal costs. These penalties are intended to encourage both parties to engage in the pre-action process seriously and in good faith.
Effect on the Court’s Decision: When making its final decision, the court will consider whether each party made a genuine effort to resolve the dispute before starting legal action. If you did not make a genuine effort or refused to participate in mediation, this could impact the court’s decision, especially in cases involving children.
Take the Right Steps Towards Resolution – Contact Us Today
Understanding and following pre-action procedures is a crucial part of family law in Australia. These steps are designed to help families find solutions without the need for a stressful and expensive court battle. If you’re unsure about how to proceed or whether you need to follow these procedures in your case, it’s always a good idea to seek expert legal advice.
At Justice Family Lawyers, we can guide you through the pre-action process and help you explore your options for resolving your family law matters. Contact us today to schedule a consultation and get the support you need to achieve the best outcome for you and your family.
