Pre-action procedures are procedures which parties and their legal representatives can use to attempt to resolve a dispute, or otherwise narrow the issues in dispute, so that a matter can be resolved outside of court.
If you are proceeding in the Family Court of Australia (more complex family law matters), pre-action procedures are mandatory. If you are proceeding in the Federal Circuit Court of Australia (for most family law matters), pre-action procedures are not mandatory, however they are recommended by all practitioners. Usually a judge will make procedural orders that require pre-action procedures be attended to throughout the proceedings.
For more information, see court process.
Pre-action procedures include:
(a) Participating in dispute resolution [link];
(b) Writing to the other party setting out the parameters of your claim (including a genuine offer to resolve the matter) and negotiating options for settlement; and
(c) Complying, as far as practicable, with the duty of disclosure [link].
By complying with the abovementioned pre-action procedures, the parties are encouraged to exchange information and better understand the objectives of their opponent. By resolving the issues in dispute quickly, legal action can be avoided (or at least minimised) and this will limit costs and stress for both parties involved.
Of course, in certain circumstances, participating in pre-action procedures is not viable. For example:
(a) If your matter involves urgency, allegations of family violence or fraud;
(b) In situations where your former partner simply refuses to negotiate;
(c) If someone would be unduly prejudiced or adversely affected if another person became aware of the intention to start a case, such as attempting to defeat the claim or becoming increasingly aggressive as a result of the proceedings; and
(d) If a time limitation is close to expiring.
It is important to give pre-action procedures a genuine attempt. If the court finds that a genuine attempt was not made, the court may order that the non-complying party pay all or part of the other parties’ costs, and/or take non-compliance into account when making orders.
For more information see: Family Court of Australia, Before you file – pre-action procedure.
If you require any further assistance with pre-action procedures, we invite you to contact our family law department for a free initial consultation to discuss your options.