What to Do Next if you have Been Served in Family Law

We are often approached by clients who have received Court documents from an ex-partner regarding parenting and/or property matters seeking urgent assistance with next steps.

In family law, before a party files with the Court, they are required to comply with the pre-action procedures. These procedures include:

That parties must be provided with and explained the pre-action procedures and provided the relevant brochures.

That the parties must attempt dispute resolution, noting that there are some exceptions to this.

That if it is appropriate that the parties attend dispute resolution, that they make a genuine effort to resolve the issues in dispute.

That the parties must exchange all relevant documents and information in relation to the matter.

That a party must write to the other party advising that they intent to commence proceedings containing:

- Set out the issues in dispute.
- Specify the orders to be sought if proceedings are commenced.
- Make a genuine offer to resolve the issues.
- Nominate a reasonable timeframe for response.
- Attach a copy of the relevant pre-action procedure brochure.

The party receiving the notice must respond in writing advising whether they accept the other party’s offer and if not:

- Set out the issues in dispute.
- Specify the orders the respondent will seek.
- Make a genuine counteroffer.
- Nominate a timeframe for further response.

When filing, the filing party must file a Genuine Steps Certificate stating their compliance with the pre-action proceedings or their reasoning for claiming an exception to the process.

Exceptions to the pre-action procedures

Exceptions to compliance with the above include:

That there are allegations of family violence or child abuse.
The matter is urgent.
Compliance to the pre-action procedures would cause undue prejudice.
A previous application was made within the last 12 months.

If the other party has not complied with these procedures, this issue may be raised at the first Court event and the matter could be stayed until these procedures have been followed and an adverse cost order may be made.

What if pre-action procedures have been followed?

If the pre-action procedures have been followed, it is crucial to seek legal advice in relation to responding to the Court’s requests in a timely manner.

Once an applicant’s documents have been filed, they must be personally served on the receiving party, and Affidavit of Service filed.

Once served, the recipient generally has 28 days to file their response documents, unless otherwise specified by a Court Order.

The Court will provide a Court date, generally listed between one to two months from the date of filing the applicant’s documents unless the matter is urgent.

If you have been served with an initiating application or would like advice as to progressing your family law matter, please contact our firm to make an appointment with one of our family lawyers on (02) 4944 3322.