A party before making an application to the court seeking relief under the Family Law Act is required to make a genuine effort to resolve the dispute before starting a case by giving their former partner a notice of intention to claim and exploring options for settlement by correspondence.
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.
The objects of the pre-action procedures are:
(a) to encourage early and full disclosure by the exchange of information and documents about the 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 a case if necessary and if parties have followed the pre-action procedure they 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, to seek only those orders that are reasonably achievable on the evidence.
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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;
(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;
(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.
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.
The court expects parties to take a sensible and responsible approach to the pre-action procedures.
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.
Pre-action procedures
A person who is considering filing an application to start a case must, before filing the application:
(a) give a copy of the pre-action procedures to the other party to the case;
If the parties reach agreement, they may arrange to have the agreement made binding by filing an Application for Consent Orders.
Before filing an application, the applicant must give to the other party written notice of intention to start a case.
The notice of intention to start a case 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 that is at least 14 days after the date of the letter within which the respondent is required to reply to the notice.
The respondent must, within the nominated time, reply in writing to the notice of intention to start a case 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.
It is expected that a party will not start a case by filing an application in a court unless:
(a) the 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.
Disclosure and exchange of correspondence
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.
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 exchange copies of documents relevant to an issue in the dispute;
(a) medical reports, school reports, letters, drawings, photographs.
(b) a schedule of assets, income and liabilities;
(c) a copy of the party's 3 most recent taxation returns and assessments;
(d) the party's bank records for previous 12 months;
(e) the party's 3 most recent pay slips;
(f) business activity statements for any business for the previous 12 months;
(g) documents relevant to determining the income, expenses, assets, liabilities and financial resources of the party;
(h) documents about any superannuation interest of the party
(i) for a corporation in relation to which a party has a duty of disclosure:
· 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;
· a copy of the corporation's most recent annual return that lists the directors and shareholders; and
· a copy of the corporation's constitution and any amendments;
(j) for a trust in relation to which a party has a duty of disclosure:
· 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
· a copy of the trust deed, including any amendments;
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(k) for a partnership in relation to which a party has a duty of disclosure:
· 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
· a copy of the partnership agreement, including any amendments;
(l) any business activity statements for the previous 12 months for the entities set out above; and
(m) unless the value is agreed, a market appraisal of the value of any item of property in which a party has an interest.
(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 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.
Expert witnesses
(1) There are strict rules about instructing and obtaining reports from an expert witness.
(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. Lawyers' obligations
(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) endeavour to reach a solution by settlement rather than start 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 the compromise or settlement is reasonable;
(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;
(g) advise clients about factors that may affect a court considering costs orders;
(h) give clients documents prepared by the court about:
(i) the legal aid services and dispute resolution services available to them; and
(ii) the legal and social effects and possible consequences to children of 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.
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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.