Can I be taken to Court for property or parenting matters without the opportunity to resolve matters outside the Court system?

Posted on Jul 23, 2018 by Terry Morgan   |   Categories: Family Law

The Australian Family Court system is stretched to the limit, capacity and funding wise, and there are regulations in place to ensure that parties attempt to resolve their matters without recourse to the Court system.

In 2004 the Family Law Rules 2004 (Cth) introduced pre-filing dispute resolution requirements. It is a requirement that prior to filing an application with the Court in property matters, parties must attempt dispute resolution, such as negotiation, conciliation, arbitration and counselling.

Parties must also comply with the duty of disclosure. This requires the exchange of financial information between both parties so that decisions are made by the respective parties being in possession of knowledge of the entirety of both parties’ financial positions.

If a party does not comply with the preaction requirements, there may be cost implications. There are a few rare instances where the preaction procedures do not need to be complied with and these are in urgent cases where there are allegations of family violence or fraud and there is a “genuinely intractable dispute”.

In parenting disputes, mediation/dispute resolution is mandatory. Any party seeking orders from the Court must file a Certificate from a Dispute Resolution Practitioner evidencing that they have attempted mediation. The exceptions to this are urgent matters, or where there has been family violence or a risk of abuse to a child.

The preaction procedures do not apply in the Federal Circuit Court of Australia which is where most family law applications are made. In practice, the preaction procedures are followed in the Federal Circuit Court in any event and the Court can apply the rules at their discretion.