Prior to initiating parenting proceedings in the Family Court, parties are to comply with pre-action procedures under Schedule 1 of the Family Law Rules 2004.208 The purpose of the pre action procedures include providing parties an opportunity to settle all or part of the parenting dispute prior to commencing court litigation.209 The pre action procedures emphasise the use of dispute resolution services to reach settlement where possible. The objective of the pre-action procedures are to:
encourage early and full disclosure through the exchange of information and documents about the prospective case
assist people to resolve their differences quickly and fairly, and to avoid legal action where possible (thereby limiting costs and hopefully avoid the need to start a court case)
help parties (where an agreement cannot be reached out of court) to identify the real issues in dispute (thereby helping to reduce the time involved and the cost of the case), and
encourage parties to seek only those orders that are realistic and reasonable on the evidence.210
The pre-action procedures build on the requirements for parties to attempt FDR before initiating court proceedings. The first step in the pre-action procedures is to comply with the requirements of compulsory FDR.211 The Court’s brochure, Before you file – pre-action procedures for parenting cases, notes that if agreement is reached parties may enter into parenting plans or apply for consent orders. The brochure also contains advice to families that should agreement not be reached through FDR, parties may participate in other dispute resolution processes, such as family counseling, negotiation, conciliation, and arbitration, at any time before commencing court action.
Before commencing court proceedings, a party must issue the other potential party to the parenting proceedings a notice of intention to claim.212 The notice is to contain details of the matters in dispute, the proposed parenting orders, a genuine offer to resolve the parenting issues and a time, being not less than 14 days after the date of the letter, in which the other party is to respond.213 Once a notice of intention to claim is issued, parties are required to explore options for settlement through exchange of correspondence.214
In exploring options for settlement, parties are to comply with the obligations of full and frank disclosure,215 which requires parties to provide to each other party all information relevant to an issue in the case.216
The pre-action procedures aim to encourage child-focused negotiations. While not including children in the negotiation process, the Family Law Rules direct parties to consider at each stage of the pre-action procedures the best interests of the child and the effect of the negotiations, and of any litigation, on their child and the parent-child relationship. Parties are also directed to consider the benefit that the child may receive from parental cooperation.217 However, while the Rules encourage parties to consider the needs of their children, the extent to which this occurs may vary between families.
Pre-action procedures in circumstances of family violence or child abuse
The pre-action procedures, and the emphasis on negotiation to reach settlement that the pre-action procedures entail, do not apply to cases involving allegations of child abuse or family violence, or the risk of child abuse or family violence.218
To commence parenting proceedings, applicants in the Family Court file an ‘Initiating Application (Family Law)’219 containing details the final orders, and any interim orders, that the applicant is seeking.220 Parties are not to file affidavits with an Initiating Application unless they seek interim orders in addition to final orders.221 The Initiating Application must be served on other parties listed in the application through special service procedures,222 which require the application to be personally received by the person served.223 The Initiating Application is to be served with court prepared brochures containing information about reconciliation, non-court based family services and the court’s processes and services.224
Parties responding to an Initiating Application must file a ‘Response to an Initiating Application (Family Law)’.225 A Response to an Initiating Application must be filed within seven days of the scheduled date for the procedural hearing.226 The Response must note the facts in the Initiating Application with which the Respondent disagrees, state what the Respondent considers to be the facts, and give full details of the orders that the Respondent seeks. The Response may also include consent to an order that the Applicant seeks, ask that the Initiating Application be dismissed or ask for orders in another cause of action.227 The same restrictions to filing an affidavit that apply to Applicants also apply to Respondents. An affidavit is not to be filed with a Response unless the Response seek interim, procedural, ancillary or other incidental orders or the Response is replying to such orders sought by the Applicant.228
FDR – assessment at filing
Compliance with the FDR requirements is assessed by registry staff when processing an Initiating Application. The application will not be accepted unless either an exemption to FDR is sought or a section 60I certificate is filed with the Initiating Application.229 The onus is on Applicants not filing a section 60I certificate to establish that an exception to FDR applies. These Applicants must file an affidavit with the Initiating Application setting out the facts relied on to satisfy the Court that there are reasonable grounds to believe there has been child abuse or family violence, or there would be a risk of child abuse or family violence if parenting proceedings were delayed (or whatever the other exception claimed is).230 The Family Court has provided a pro forma affidavit to assist parties claiming an exemption to compulsory FDR, titled ‘Affidavit – Non-filing of Family Dispute Resolution Certificate’.231 The pro forma contains tick boxes that reflect the exemptions under subsection 60I(9) of the Family Law Act. Under each exemption parties are provided space to include the facts that relate to the exemption. The pro forma advises applicants that they ‘must provide further information to support the statement. It is not sufficient to simply tick that particular sentence’.232 Where the party is seeking interim orders in addition to final orders, the information may instead be included in any affidavit filed in support of an interim application. In this instance, parties are not required to use the pro forma.
The Family Court has advised that the affidavit is not assessed by registry staff, but by a Registrar. If the Registrar forms the opinion that on the basis of the affidavit it is not established that an exception applies, and the application cannot be filed, it is open to the applicant to file further material and request further consideration based on the additional material.