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FAMILY LAW RULES 2004 - SCHEDULE 1

Pre-action procedures

(rule 1.05)

Part 1 -- Financial cases (property settlement and maintenance)

1   General

             (1)  Each prospective party to a case in the Family Court of Australia is required to make a genuine effort to resolve the dispute before starting a case by:

                     (a)  participating in dispute resolution, such as negotiation, conciliation, arbitration and counselling;

                     (b)  exchanging a notice of intention to claim and exploring options for settlement by correspondence; and

                     (c)  complying, as far as practicable, with the duty of disclosure.

             (2)  Unless there are good reasons for not doing so, all parties are expected to have followed these pre-action procedures before filing an application to start a case.

             (3)  There may be serious consequences, including costs penalties, for non-compliance with these requirements.

             (4)  The circumstances in which the court may accept that it was not possible or appropriate for a party to follow the pre-action procedures include cases:

                     (a)  involving urgency;

                     (b)  involving allegations of family violence;

                     (c)  involving allegations of fraud;

                     (d)  in which there is a genuinely intractable dispute;

                     (e)  in which a person would be unduly prejudiced or adversely affected if notice is given to another person (in the dispute) of an intention to start a case;

                      (f)  in which a time limitation is close to expiring; and

                     (g)  involving a genuine dispute about the existence of a de facto relationship, or whether a choice under item 86A or 90A of Schedule 1 to the Family Law Amendment (De Facto Financial Matters and Other Measures) Act 2008 should be set aside.

             (5)  The objects of these pre-action procedures are:

                     (a)  to encourage early and full disclosure in appropriate cases by the exchange of information and documents about the prospective case;

                     (b)  to provide parties with a process to help them avoid legal action by reaching a settlement of the dispute before starting a case;

                     (c)  to provide parties with a procedure to resolve the case quickly and limit costs;

                     (d)  to help the efficient management of the case, if a case becomes necessary (that is, parties who have followed the pre-action procedure should be able to clearly identify the real issues which should help to reduce the duration and cost of the case); and

                     (e)  to encourage parties, if a case becomes necessary, to seek only those orders that are reasonably achievable on the evidence.

             (6)  At all stages during the pre-action negotiations and, if a case is started, during the conduct of the case itself, the parties must have regard to:

                     (a)  the need to protect and safeguard the interests of any child;

                     (b)  the continuing relationship between a parent and a child and the benefits that cooperation between parents brings a child (that is, helping to maintain as good a continuing relationship between the parties and the child as is possible in the circumstances) ;

                     (c)  the potential damage to a child involved in a dispute between the parents, particularly if the child is encouraged to take sides or take part in the dispute;

                     (d)  the best way of exploring options for settlement, identifying the issues as soon as possible, and seeking resolution of them;

                     (e)  the need to avoid protracted, unnecessary, hostile and inflammatory exchanges;

                      (f)  the impact of correspondence on the intended reader (in particular, on the parties);

                     (g)  the need to seek only those orders that are reasonably achievable on the evidence and that are consistent with the current law;

                     (h)  the principle of proportionality and the need to control costs because it is unacceptable for the costs of any case to be disproportionate to the financial value of the subject matter of the dispute; and

                      (i)  t he duty to make full and frank disclosure of all material facts, documents and other information relevant to the dispute.

Note:          The duty of disclosure extends to the requirement to disclose any significant changes (see clause 4 of this Part).

             (7)  Parties must not:

                     (a)  use the pre-action procedures for an improper purpose (for example, to harass the other party or to cause unnecessary cost or delay); or

                     (b)  in correspondence, raise irrelevant issues or issues that may cause the other party to adopt an entrenched, polarised or hostile position.

             (8)  The court expects parties to take a sensible and responsible approach to the pre-action procedures.

             (9)  The parties are not expected to continue to follow the pre-action procedures to their detriment if reasonable attempts to follow the pre-action procedures have not achieved a satisfactory solution.

2   Compliance

             (1)  The court regards the requirements set out in these pre-action procedures as the standard and appropriate approach for a person to take before filing an application in a court.

             (2)  If a case is subsequently started, the court may consider whether these requirements have been met and, if not, what the consequences should be (if any).

             (3)  The court may take into account compliance and non-compliance with the pre-action procedures when it is making orders about case management and considering orders for costs (see paragraphs 1.10(2)(d), 11.03(2)(b) and 19.10(1)(b) , and paragraph 6.10(1)(b) of Schedule 6 ).

             (4)  Unreasonable non-compliance may result in the court ordering the non-complying party to pay all or part of the costs of the other party or parties in the case.

             (5)  In situations of non-compliance, the court may ensure that the complying party is in no worse a position than he or she would have been if the pre-action procedures had been complied with.

Examples of non-compliance with pre-action procedures

Not sending a written notice of proposed application; not providing sufficient information or documents to the other party; not following a procedure required by the pre-action procedures; not responding appropriately within the nominated time to the written notice of proposed application; not responding appropriately within a reasonable time to any reasonable request for information, documents or other requirement of this procedure.

3   Pre-action procedures

             (1)  A person who is considering filing an application to start a case must, before filing the application:

                     (a)  give a copy of these pre-action procedures to the other prospective parties to the case;

                     (b)  make inquiries about the dispute resolution services available; and

                     (c)  invite the other parties to participate in dispute resolution with an identified person or organisation or other person or organisation to be agreed.

          (1A)  Paragraph (1)(a) does not apply if, within 12 months before filing the application, the person gave to, or received from, a prospective party to the case, a copy of these pre-action procedures.

             (2)  Each prospective party must:

                     (a)  cooperate for the purpose of agreeing on an appropriate dispute resolution service; and

                     (b)  make a genuine effort to resolve the dispute by participating in dispute resolution.

             (3)  If the prospective parties reach agreement, they may arrange to have the agreement made binding by filing an Application for Consent Orders.

             (4)  Before filing an application, the proposed applicant must give to the other party (the proposed respondent ) written notice of his or her intention to start a case if:

                     (a)  there is no appropriate dispute resolution service available to the parties;

                     (b)  a party fails or refuses to participate in dispute resolution; or

                     (c)  the parties are unable to reach agreement by dispute resolution.

             (5)  The notice under subclause (4) must set out:

                     (a)  the issues in dispute;

                     (b)  the orders to be sought if a case is started;

                     (c)  a genuine offer to resolve the issues;

                     (d)  a time (the nominated time ) (that is at least 14 days after the date of the letter) within which the proposed respondent is required to reply to the notice.

             (6)  The proposed respondent must, within the nominated time, reply in writing to the notice under subclause (4), stating whether the offer is accepted and, if not, setting out:

                     (a)  the issues in dispute;

                     (b)  the orders to be sought if a case is started;

                     (c)  a genuine counter-offer to resolve the issues; and

                     (d)  the nominated time (that is at least 14 days after the date of the letter) within which the claimant must reply.

             (7)  It is expected that a party will not start a case by filing an application in a court unless:

                     (a)  the proposed respondent does not respond to a notice of intention to start a case; or

                     (b)  agreement is unable to be reached after a reasonable attempt to settle by correspondence under this clause.

4   Disclosure and exchange of correspondence

             (1)  Parties to a case have a duty to make full and frank disclosure of all information relevant to the issues in dispute in a timely manner (see rule 13.01).

             (2)  In attempting to resolve their dispute, parties should, as soon as practicable on learning of the dispute and, if appropriate, as a part of the exchange of correspondence under clause 3 of these pre-action procedures, exchange:

                     (a)  a schedule of assets, income and liabilities;

                     (b)  a list of documents in the party's possession or control that are relevant to the dispute; and

                     (c)  a copy of any document required by the other party, identified by reference to the list of documents.

             (3)  Parties are encouraged to refer to the Financial Statement and rules 4.15, 12.05 and 13.04 as a guide for what information to provide and documents to exchange.

             (4)  Parties are not required to exchange documents that are not subject to the duty of disclosure under rule 13.12 and that would not be ordered to be disclosed by a court (see rule 13.12).

             (5)  The documents that the court would consider appropriate to include in the list of documents and exchange include:

                     (a)  in a maintenance case:

                              (i)  a copy of the party's taxation return for the most recent financial year;

                             (ii)  the party's bank records for the 12 months ending on the date when the maintenance application was filed;

                            (iii)  if the party receives wage or salary payments--the party's 3 most recent pay slips;

                            (iv)  if the party owns or controls a business--the business activity statements for the business for the previous 12 months; and

                             (v)  any other document relevant to determining the income, expenses, assets, liabilities and financial resources of the party; and

                     (b)  in a property settlement case:

                              (i)  a copy of the party's 3 most recent taxation returns and assessments;

                             (ii)  documents about any superannuation interest of the party, including:

                                        (A)  a completed superannuation information form for the superannuation interest;

                                        (B)  if the party is a member of a self-managed superannuation fund--a copy of the trust deed and the 3 most recent financial statements for the fund; and

                                        (C)  the value of the superannuation interest, including the basis on which the value has been worked out and any documents working out the value;

                            (iii)  for a corporation in relation to which a party has a duty of disclosure under rule 13.04:

                                        (A)  a copy of the financial statements for the 3 most recent financial years, including balance sheets, profit and loss accounts, depreciation schedules and taxation returns;

                                        (B)  a copy of the corporation's most recent annual return that lists the directors and shareholders; and

                                        (C)  a copy of the corporation's constitution and any amendments;

                            (iv)  for a trust in relation to which a party has a duty of disclosure under rule 13.04:

                                        (A)  a copy of the financial statements for the 3 most recent financial years, including balance sheets, profit and loss accounts, depreciation schedules and taxation returns; and

                                        (B)  a copy of the trust deed, including any amendments;

                             (v)  for a partnership in relation to which a party has a duty of disclosure under rule 13.04:

                                        (A)  a copy of the financial statements for the 3 most recent financial years, including balance sheets, profit and loss accounts, depreciation schedules and taxation returns; and

                                        (B)  a copy of the partnership agreement, including any amendments;

                            (vi)  for a person or entity mentioned in subparagraph (i), (iii), (iv) or (v)--any business activity statements for the previous 12 months; and

                           (vii)  unless the value is agreed, a market appraisal of the value of any item of property in which a party has an interest.

             (6)  It is reasonable to require a party who is unable to produce a document for inspection to provide a written authority addressed to a third party authorising the third party to provide a copy of the document in question to the other party, if this is practicable.

             (7)  Parties should agree to a reasonable place and time for the documents to be inspected and copied at the cost of the person requesting the copies.

Note:          The court will refer to Chapter 13 as a guide for what is regarded as reasonable conduct by the parties in making these arrangements.

             (8)  Parties must not use a document disclosed by another party for a purpose other than the resolution or determination of the dispute to which the disclosure of the document relates.

             (9)  Documents produced by a person to another person in compliance with the pre-action procedures are taken to have been produced on the basis of an undertaking from the party receiving the documents that the documents will be used for the purpose of the case only.

           (10)  Parties must bear in mind that an object of the pre-action procedures is to control costs and, if possible, resolve the dispute quickly.

           (11)  Disagreements about disclosure may be better managed by the court within the context of a case.

5   Expert witnesses

             (1)  There are strict rules about instructing and obtaining reports from an expert witness (see Part 15.5).

             (2)  In summary:

                     (a)  an expert witness must be instructed in writing and must be fully informed of his or her obligations;

                     (b)  if possible, parties should seek to retain an expert witness only on an issue in which the expert witness's evidence is necessary to resolve the dispute;

                     (c)  if practicable, parties should agree to obtain a report from a single expert witness instructed by both parties; and

                     (d)  if separate experts' reports are to be relied on at a hearing, the court requires the reports to be disclosed.

6   Lawyers' obligations

Note :       See also rules 1.08 and 19.03.

             (1)  Lawyers must, as early as practicable:

                     (a)  advise clients of ways of resolving the dispute without starting legal action;

                     (b)  advise clients of their duty to make full and frank disclosure, and of the possible consequences of breaching that duty;

                     (c)  subject to it being in the best interests of the client and any child, endeavour to reach a solution by settlement rather than start or continue legal action;

                     (d)  notify the client if, in the lawyer's opinion, it is in the client's best interests to accept a compromise or settlement if, in the lawyer's opinion, the compromise or settlement is a reasonable one;

                     (e)  in cases of unexpected delay, explain the delay and whether or not the client may assist to resolve the delay;

                      (f)  advise clients of the estimated costs of legal action (see rule 19.03);

                     (g)  advise clients about the factors that may affect the court in considering costs orders;

                     (h)  give clients documents prepared by the court (if applicable) about:

                              (i)  the legal aid services and dispute resolution services available to them; and

                             (ii)  the legal and social effects and the possible consequences for children of proposed litigation; and

                      (i)  actively discourage clients from making ambit claims or seeking orders that the evidence and established principle, including recent case law, indicates is not reasonably achievable.

             (2)  The court recognises that the pre-action procedures cannot override a lawyer's duty to his or her client.

             (3)  It is accepted that it is sometimes impossible to comply with a procedure because a client may refuse to take advice, however, a lawyer has a duty as an officer of the court and must not mislead the court.

             (4)  If a client wishes not to disclose a fact or document that is relevant to the case, a lawyer has an obligation to take the appropriate action, that is, to cease to act for the client.

Part 2 -- Parenting cases

1   General

             (1)  Each prospective party to a case in the Family Court of Australia is required to make a genuine effort to resolve the dispute before starting a case by:

                     (a)  exchanging a notice of intention to claim and exploring options for settlement by correspondence; and

                     (b)  complying, as far as practicable, with the duty of disclosure.

             (2)  Unless there are good reasons for not doing so, all parties are expected to have followed the pre-action procedures before filing an application to start a case.

             (3)  There may be serious consequences, including costs penalties, for non-compliance with these requirements.

             (4)  The circumstances in which the court may accept that it was not possible or appropriate for a party to follow the pre-action procedures include cases:

                     (a)  involving urgency;

                     (b)  involving allegations of child abuse or risk of child abuse;

                     (c)  involving allegations of family violence or risk of family violence;

                     (d)  in which there is a genuinely intractable dispute; and

                     (e)  in which a person would be unduly prejudiced or adversely affected if another person to the dispute is given notice of an intention to start a case.

             (5)  The objects of these pre-action procedures are:

                     (a)  to encourage early and full disclosure in appropriate cases by the exchange of information and documents about the prospective case;

                     (b)  to provide parties with a process to help them avoid legal action by reaching a settlement of the dispute before starting a case,

                     (c)  to provide parties with a procedure to resolve the case quickly and limit costs;

                     (d)  to help the efficient management of the case, if a case becomes necessary (that is, parties who have followed the pre-action procedure should be able to clearly identify the real issues which should help to reduce the duration and cost of the case); and

                     (e)  to encourage parties, if a case becomes necessary, to seek only those orders that are reasonably achievable on the evidence.

             (6)  At all stages during the pre-action negotiations and, if a case is started, during the conduct of the case itself, the parties must have regard to:

                     (a)  the best interests of any child;

                     (b)  the continuing relationship between a parent and a child and the benefits that cooperation between parents brings a child (that is, helping to maintain as good a continuing relationship between the parties and the child as is possible in the circumstances) ;

                     (c)  the potential damage to a child involved in a dispute between the parents, particularly if the child is encouraged to take sides or take part in the dispute;

                     (d)  the principle that people should not seek orders about a child when an application is motivated by intentions other than the best interests of the child;

                     (e)  the best way of exploring options for settlement, identifying the issues as soon as possible, and seeking resolution of them;

                      (f)  the need to avoid protracted, unnecessary, hostile and inflammatory exchanges;

                     (g)  the impact of correspondence on the intended reader (in particular, on the parties);

                     (h)  the need to seek only those orders that are reasonably achievable on the evidence and that are consistent with the current law; and

                      (i)  the duty to make full and frank disclosure of all material facts, documents and other information relevant to the dispute.

Note:          The duty of disclosure extends to the requirement to disclose any significant changes (see clause 4 of this Part).

             (7)  Parties must not:

                     (a)  use the pre-action procedures for an improper purpose (for example, to harass the other party or to cause unnecessary cost or delay); or

                     (b)  in correspondence, raise irrelevant issues or issues that may cause the other party to adopt an entrenched, polarised or hostile position.

             (8)  The court expects parties to take a sensible and responsible approach to the pre-action procedures.

             (9)  The parties are not expected to continue to follow the pre-action procedures to their detriment if reasonable attempts to follow the pre-action procedures have not achieved a satisfactory solution.

2   Compliance

             (1)  The court regards the requirements set out in these pre-action procedures as the standard and appropriate approach for a person to take before filing an application in a court.

             (2)  If a case is subsequently started, the court may consider whether these requirements have been met, and if not, what the consequences should be (if any).

             (3)  The court may take into account compliance and non-compliance with the pre-action procedures when it is making orders about case management and considering orders for costs (see paragraphs 1.10(2)(d), 11.03(2)(b) and 19.10(1)(b)).

             (4)  Unreasonable non-compliance may result in the court ordering the non-complying party to pay all or part of the costs of the other party or parties in the case.

             (5)  In situations of non-compliance, the court may ensure that the complying party is in no worse a position than he or she would have been if the pre-action procedures had been complied with.

Examples of non-compliance with pre-action procedures

Not sending a written notice of proposed application; not providing sufficient information or documents to the other party; not following a procedure required by the pre-action procedures; not responding appropriately within the nominated time to the written notice of proposed application; not responding appropriately within a reasonable time to any reasonable request for information, documents or other requirement of this procedure.

3   Pre-action procedures

             (1)  A person who is considering filing an application to start a case must, before filing the application:

                     (a)  give a copy of these pre-action procedures to the other prospective parties to the case;

                     (b)  comply with the requirements of this Schedule.

          (1A)  Paragraph (1)(a) does not apply if, within 12 months before filing the application, the person gave to, or received from, a prospective party to the case, a copy of these pre-action procedures.

             (3)  If the prospective parties reach agreement, they may arrange to have the agreement made binding by filing an Application for Consent Orders (Form 11).

             (4)  Before filing an application, the proposed applicant must give to the other party (the proposed respondent ) written notice of his or her intention to start a case.

             (5)  The notice under subclause (4) must set out:

                     (a)  the issues in dispute;

                     (b)  the orders to be sought if a case is started;

                     (c)  a genuine offer to resolve the issues;

                     (d)  a time (the nominated time ) (that is at least 14 days after the date of the letter) within which the proposed respondent is required to reply to the notice.

             (6)  The proposed respondent must, within the nominated time, reply in writing to the notice under subclause (4), stating whether the offer is accepted and, if not, setting out:

                     (a)  the issues in dispute;

                     (b)  the orders to be sought if a case is started;

                     (c)  a genuine counter-offer to resolve the issues; and

                     (d)  the nominated time (that is at least 14 days after the date of the letter) within which the claimant must reply.

             (7)  It is expected that a party will not start a case by filing an application in a court unless:

                     (a)  the proposed respondent does not respond to a notice of intention to start a case; or

                     (b)  agreement is unable to be reached after a reasonable attempt to settle by correspondence under this clause.

4   Disclosure and exchange of correspondence

             (1)  Parties to a case have a duty to make full and frank disclosure of all information relevant to the issues in dispute in a timely manner (see rule 13.01).

             (2)  In attempting to resolve their dispute, parties should as soon as practicable on learning of the dispute and, if appropriate, as a part of the exchange of correspondence under clause 3 of these pre-action procedures, exchange copies of documents in their possession or control relevant to an issue in the dispute (for example, medical reports, school reports, letters, drawings, photographs).

             (3)  Parties must not use a document disclosed by another party for a purpose other than the resolution or determination of the dispute to which the disclosure of the document relates.

             (4)  Documents produced by a person to another person in compliance with these pre-action procedures are taken to have been produced on the basis of an undertaking from the party receiving the documents that the documents will be used for the purpose of the case only.

5   Expert witnesses

             (1)  There are strict rules about instructing and obtaining reports from an expert witness (see Part 15.5).

             (2)  In summary:

                     (a)  an expert witness must be instructed in writing and must be fully informed of his or her obligations;

                     (b)  if possible, parties should seek to retain an expert witness only on an issue in which the expert witness's evidence is necessary to resolve the dispute;

                     (c)  if practicable, parties should agree to obtain a report from a single expert witness instructed by both parties; and

                     (d)  if separate experts' reports are obtained, the court requires the reports to be disclosed.

6   Lawyers' obligations

Note:       See also rules 1.08 and 19.03 and clause 6.03 of Schedule 6.

             (1)  Lawyers must, as early as practicable:

                     (a)  advise clients of ways of resolving the dispute without starting legal action;

                     (b)  advise clients of their duty to make full and frank disclosure, and of the possible consequences of breaching that duty;

                     (c)  subject to it being in the best interests of the client and any child, endeavour to reach a solution by settlement rather than start or continue legal action;

                     (d)  notify the client if, in the lawyer's opinion, it is in the client's best interests to accept a compromise or settlement if, in the lawyer's opinion, the compromise or settlement is a reasonable one;

                     (e)  in cases of unexpected delay, explain the delay and whether or not the client may assist to resolve the delay;

                      (f)  advise clients of the estimated costs of legal action (see rule 19.03 and clause 6.03 of Schedule 6 );

                     (g)  advise clients about the factors that may affect the court in considering costs orders;

                     (h)  give clients documents prepared by the court (if applicable) about:

                              (i)  the legal aid services and dispute resolution services available to them; and

                             (ii)  the legal and social effects and the possible consequences for children of proposed litigation; and

                      (i)  actively discourage clients from making ambit claims or seeking orders that the evidence and established principle, including recent case law, indicates is not reasonably achievable.

             (2)  The court recognises that the pre-action procedures cannot override a lawyer's duty to his or her client.

             (3)  It is accepted that it is sometimes impossible to comply with a procedure because a client may refuse to take advice, however, a lawyer has a duty as an officer of the court and must not mislead the court.

             (4)  If a client wishes not to disclose a fact or document that is relevant to the case, a lawyer has an obligation to take the appropriate action, that is, cease to act for the client.

Note:          Section 12E of the Act requires legal practitioners to give to persons considering instituting proceedings documents containing information about non-court based family services and court's processes and services.




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