Pre action procedures include dispute resolution, communication and negotiation, and disclosure, and should be engaged in before considering attending court. Parties are required by the Federal Circuit and Family Court of Australia to comply with pre action procedures before commencing proceedings.
There are a range of documents that must be filed when making an application to commence proceedings. Once your application has been filed and ‘sealed’ by the court, it must be personally served on the other party. If you are the respondent in court proceedings, there are a range of documents you will be required to file. Usually, the First Court Event requires all parties to the proceeding to attend court. The Judge or Registrar will make a determination, seek facts and evidence, and make directions necessary to proceed. When a binding decision is contravened by a party, there are various options available, including an Application in a case, an Application – Contravention, or an Application to vary the primary order.
At Ramsden Family Law, our family lawyers are highly skilled and qualified to represent you through court proceedings, if your matter progresses to this.
Pre action procedures are used by parties and legal representatives in an attempt to resolve part of whole of the dispute outside of court. Pre action procedures can include:
The aim of pre action procedures is to encourage the exchange of information between the parties so that each party may understand the other’s objectives. In turn, hopefully leading the parties to quickly resolve their dispute, therefore limiting stress and legal costs.
In order to make an application to commence proceedings the Federal Circuit and Family Court of Australia, the following documents must be filed:
Once filed and ‘sealed’ by the court, your application needs to be personally served on the other party or respondent or their legal representation.
If you are named as the respondent in court proceedings, you will be personally served documents from the other party or applicant. You will need to file the following:
a) Response to Initiating Application setting out opposition to the orders sought or other orders you seek the court to make;
b) If interim or urgent Orders are sought, Affidavit setting out relevant facts, circumstances and basis for your application if you are responding to the interim or procedural orders sought or seeking alternate interim or procedural orders;
c) Notice of Risk (parenting matters only) setting out any concerns in relation to the safety of your child or children and documenting any allegations of domestic and/or family violence;
d) Financial Statement (property matters only) setting out any and all assets, liabilities, financial resource, expenses and income;
e) Financial and Parenting Questionnaires (depending on what type of Orders are sought);
f) Genuine Steps Certificate confirming the party has complied with the pre action procedures designed to help parties reach agreements (and thus avoid court) or narrow the issues;
g) Undertaking that the party has meet their duty to disclose to the other party (and the court) all relevant information and documents.
The Response to Initiating Application and all relevant accompanying documents must be filed and served on the other party at least 7 days before the court date listed on the first page of the Initiating Application.
The First Court Event requires all parties to the proceeding to attend court and you can normally expect the following to occur:
It is always preferable that your matter is resolved outside of court through means such as family dispute resolution and direct negotiations between parties. However, if it is the case that your matter is not resolved then your matter will move to trial.
Typically, a trial date will be set 18 – 24 months after the filing of the initiating application.
When your court date arrives, you must ensure that you and any witnesses you have (those who have sworn affidavits) attend court. You and your witnesses will be examined by the court, under oath, in relation to the matters in dispute.
Once orders have been made by consent or by order of the court, the parties are bound by those orders. A party can contravene an order or orders in a variety of ways, including:
If the contravening party provides a reasonable explanation as to the non-compliance of the order or orders, they will be excused by the court.