Before you file a pre action procedure for financial cases, you must make a genuine effort to resolve disputes through negotiation, mediation, or other dispute resolution processes.
The Family Court of Australia requires parties to take reasonable steps to settle matters before initiating formal proceedings.
This process helps reduce costs, saves time, and ensures that litigation is the last resort.
If you are considering filing, understanding your obligations under the pre-action procedures can help you prepare effectively and avoid unnecessary delays.
Understanding Pre Action Procedures for Financial Cases
Pre action procedures are a series of steps that must be followed before filing an application in the Federal Circuit and Family Court of Australia (FCFCOA) for financial matters.
These steps encourage cooperation and resolution outside the courtroom.
What You Need to Do Before Filing
You must undertake the following actions before lodging an application:
- Provide a Genuine Steps Certificate: This document confirms that you have attempted to resolve the dispute through pre -action procedures.
- Engage in Family Dispute Resolution (FDR): Mediation or negotiation is encouraged to reach an agreement before court proceedings.
- Exchange Relevant Financial Information: You and the other party must share documents such as bank statements, tax returns, superannuation details, and any financial disclosures.
- Give a Notice of Intention to File: If resolution attempts fail, you need to notify the other party in writing, giving them at least 14 days to respond.
Key Takeaway: Pre-action procedures require you to actively seek resolution before turning to litigation, ensuring both parties have a fair opportunity to negotiate.
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Exemptions from Pre Action Procedures
There are circumstances where you may be exempt from completing pre-action requirements. These include:
- Family Violence or Urgent Cases: If there is a risk of harm, you may be able to file without completing dispute resolution.
- Cases Involving Fraud or Non-Disclosure: If the other party is hiding assets or refusing to provide financial documents, the court may allow you to proceed immediately.
- Previous Attempts at Resolution: If you have already engaged in dispute resolution without success, you may not need to repeat the process.
Key Takeaway: Some situations allow you to bypass pre-action steps, but you must provide evidence to support your exemption request.
Financial Disclosure Requirements
You are required to disclose all financial information relevant to your case. This includes:
- Income statements, tax returns, and payslips
- Bank account details and transaction history
- Superannuation balances
- Business and trust documents, if applicable
- Property valuations and mortgage statements
Failing to provide full financial disclosure can result in penalties or an adverse outcome in your case.
Key Takeaway: Complete financial transparency is expected, and non-disclosure can negatively impact your case.
Consequences of Not Following Pre-Action Procedures
If you do not comply with pre-action procedures, the court may:
- Refuse to Hear Your Case: The court can delay or dismiss your application until you meet pre-action requirements.
- Impose Cost Penalties: You may be ordered to pay the other party’s legal costs if you have failed to make a reasonable effort to settle.
- Consider Your Conduct in Proceedings: The court will assess whether you have acted in good faith when deciding on orders and settlements.
Key Takeaway: Ignoring pre-action procedures can lead to delays, extra costs, and a weaker legal position.
Steps to Take If an Agreement Cannot Be Reached
If negotiation and mediation do not lead to an agreement, you can proceed with filing your case by:
- Ensuring All Documents Are Complete: Include your Genuine Steps Certificate, financial disclosure documents, and any required affidavits.
- Filing Your Application Online: Submit your case through the Commonwealth Courts Portal.
- Attending a First Court Event: The court will schedule a case assessment conference or hearing to determine the next steps.
Key Takeaway: If settlement is not possible, following the correct filing process will help you move forward efficiently.
Pre-action procedures exist to encourage negotiation and reduce the financial and emotional burden of litigation.
By understanding your responsibilities, you can ensure compliance with court rules and improve your chances of reaching a fair outcome.
If you are unsure about your obligations, seeking legal advice can help you navigate the process effectively.