Most people following marriage breakdown and separation wish to avoid having to go to court and want to resolve property settlement as quickly and as cost effectively as possible.
Separation is an emotional time and it is not uncommon for family law solicitors to encounter situations where poor communication and troubled relationships impede the party’s ability to resolve the dispute.
While people usually think of lawyers and Court, they think of court hearing and family law litigation, however when emotions are high, family lawyers and the Court Rules and procedures can assist in resolving the property settlement.
Family Court and Federal Circuit Court pre-action procedures
In the Family Court of Australia, there are strict pre-action procedures that have to be followed prior to commencing property settlement proceedings.
There are no such strict requirements in the Federal Circuit Court, however parties are encouraged to make a genuine effort to resolve the matter by Family Dispute Resolution prior to commencing proceedings.
Most Family Law matters would be filed in the Federal Circuit Court; however, it is helpful if the pre-action procedures are followed in all matters.
Explore Mediation and Family Law Dispute Resolution
Once you see your lawyer and get some advice as to where you stand it can be helpful to make contact with the other party and provide a copy of the pre-action procedures brochure produced by the Family Court and invite the other party to participate in a dispute resolution process. This can include a mediation, arbitration and/or negotiation through solicitors.
If the other party refuses to engage in negotiation, attend dispute resolution or attends but it is unsuccessful, then a written notice of intention to commence proceedings can be forwarded to the other party.
Family Law Rules 2004 r1.05.
Federal Circuit Court Rules 2001 r1.03
Family Law Rules 2004 Schedule 1 Part 1 (1)(a).
Family Law Rules 2004 Schedule 1 Part 3 (4).
This notice sets out the issues in dispute, the orders being sought and a further offer to resolve the matter and a timeframe to respond (no shorter than 14 days).
The other party should respond with his or her position. If no response is received proceedings could be commence if the party desires. The advantages of this are:
- Extensive efforts are made in a structured way before the “last resort option” of going to court is commenced;
- If you end up in Court most Judges will want to see that parties have made every effort to resolve the dispute before commencing family law proceedings. In some situations, there may even be costs orders made against a party who has unreasonably refused to participate in alternate dispute resolution such as mediation or refused to accept a reasonable offer of settlement; and
- Following these procedures can make subsequent Family Court proceedings less expensive and more quickly resolved. This is because in conducting settlement negotiations the parties would have usually narrowed the issues in dispute and collected much of the information necessary for resolution.
Other steps to assist in resolving family law property settlement faster with less expense
Each party has a duty to make full and frank disclosure of all information and documents relevant to the dispute. This should occur when the negotiations are taking place and should include a schedule of assets and liabilities and supporting documents. It should also include income (i.e. tax returns) and details of any property disposed of or purchased since separation.
The best way forward is to produce a list of the documents you have for disclosure and provide the list to the other party. The other party should disclose documents relevant to the dispute that are within his/her possession or if he has the power to obtain them. However until a Judge Orders disclosure, there is no way to enforce the obligation. By providing your disclosure contemporaneously with a request the other party is more likely to comply and be less suspicious of the process. We generally recommend to self-represented people who are unsure about obligations to make disclosure to seek independent legal advice.
If a party refuses to make disclosure, Court action can become necessary to compel compliance. Thus, making timely disclosure makes commencing proceedings less likely to be necessary.
If no disclosure is ongoing there can be substantial consequences for non-disclosure, including that a party may not be able to rely on the document as evidence, client may face a costs order or be guilty of contempt or the court.
When pre-action procedures may not be appropriate
There are exceptions to pre-action procedures, including grounds of urgency, where allegations of family violence exist or a genuinely intractable dispute. If the matter does not fall under one of the exceptions parties and lawyers should follow the procedures.
Family Law Rules 2004 Schedule 1 Part 3 (6).
Family Law Rules 2004 Schedule 1 Part 3 (5).
Family Law Rules 2004 r 13.01; Family Law Rules 2004 Schedule 1 Part 4 (1).
Family Law Rules 2004 r 13.01 (2); Family Law Rules 2004 Schedule 1 Part 4 (2)
Family Law Rules 2004 Schedule 1 Part 4 (2)(a).
Family Law Rules 2004 r 13.04.
Family Law Rules 2004 Schedule 1 Part 5 (b).
Family Law Rules 2004 r 13.07.
