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      Pre-Action Procedures and Family Law

      Pre-Action Procedures and Family Law

      Pre-Action Procedures and Family Law 960 640 Dorter

      When the Federal Circuit Court of Australia and the Family Court of Australia (FCFCOA) merged on 1 September 2021, the Federal Circuit Court of Australia Rules 2001 and the Family Law Rules 2004 were amalgamated to form the Federal Circuit Court and Family Court of Australia (Family Law) Rules 2021 (New Rules).

      A major change was to focus on Alternative Dispute Resolution (ADR) and ensuring Court proceedings were the last resort. The procedures to ‘action’ prior to commencing Court proceedings are known as ‘Pre-Action Procedures.’

      In the former Rules, the Federal Circuit Court of Australia had no requirement for litigants to undertake any pre-action procedures, save for obtaining a section 60I certificate which stated the parties ‘attempted mediation’.  Under the New Rules the Pre-Action Procedures are mandatory before filing in the FCFCOA.

      Pre-Action Procedures existed prior to the new Rules being implemented, but only in the Rules of the Family Court of Australia. The FCFCOA Rules now require a ‘Genuine Steps Certificate’ to be filed.  

      However, you are only required to undertake the Pre-Action Procedures if it is safe to do so, and if your matter is not urgent. We discuss ‘exemptions’ further below.

      What are the Pre-Action Procedures?

      Schedule 1 of the New Rules require the following to be completed prior to commencing proceedings in the FCFCOA:

      1. In the 12 months prior to commencing parenting proceedings, you need to have made a genuine effort to resolve your family law matter with a Family Dispute Resolution Practitioner (FDRP). The FDRP will issue a Section 60I Certificate.
      2. A copy of the prescribed Pre-Action Procedure Brochure and a copy of Schedule 1 of the New Rules is to be provided to the other party.
      3. In financial proceedings, financial disclosure is required to be exchanged.
      4. In parenting proceedings, disclosure of all relevant matters is to be provided, including medical reports.
      5. Enquiries are to be made about ADR,(including mediation). A FDRP is not required for financial proceedings.
      6. An invitation to participate in ADR is made and the other party must cooperate for the purposes of agreeing to an appropriate family dispute resolution service or mediation.   
      7. If you are unable to resolve the matter by ADR  and are considering filing proceedings, then you must:
        • Provide the other party with 14 days notice that you intend to commence proceedings;
        • Provide a genuine offer of settlement to resolve the matter;
        • Advise the issues in dispute if proceedings are to be commenced; and
        • Set out the orders sought if proceedings are to be commenced.
      8. The other party must respond to this notice within the 14 days or failing which, proceedings can be commenced.
      9. Complete a Genuine Steps Certificate.

      What is a Section 60I Certificate?

      This is a certificate issued by a FDRP to indicate whether there has been a genuine effort to resolve a parenting dispute. This is a mandatory requirement under the Family Law Act 1975 prior to commencing Court proceedings.

      There are five types of section 60I certificates that can be issued:

      1. you did not attend because the other party refused or failed to attend;
      2. you did not attend because the FDRP was of the view that your circumstances were not appropriate for Family Dispute Resolution;
      3. both parties attended but one or both did not make a genuine effort to resolve the issues; or
      4. you did attend and made a genuine effort to resolve the issues, but was not resolved;
      5. You and the other party started the mediation process, but the practitioner considered that it would not be appropriate to continue.

      You are required to file the Section 60I Certificate with the Court when you commence proceedings.

      Not all mediators are qualified Family Dispute Resolution Practitioners. It is prudent to confirm with your nominated mediator.

      Exemptions to providing a Section 60I certificate or undertaking Pre-Action Procedures

      You do not need a Section 60I certificate for financial matters.

      If your matter is urgent and/or there has been, or is a risk of, child abuse or family violence, this may exempt you from the Section 60I certificate and/or the pre-action procedures requirement.

      A Section 60I Certificate is not required for filing Consent Orders.

      What if I just don’t comply:

      If you file proceedings without complying with the Pre-Action Procedures and where there is no exemption, you may be exposed to cost penalties and risk the proceedings of your matter not proceeding until there has been compliance.

      If you would like assistance with the process after separation, mediation or require legal advice, Dorter Family Lawyers and Mediators are expert Family Lawyers who specialise in all areas of family law and mediation, and can assist. Please contact us on (02) 9929 8840.

      Rebekah Dorter

      Julie Cheung
      Senior Associate