PRE-FILING DISPUTE RESOLUTION
The Family Law Rules require prospective parties to
genuinely try to resolve their dispute before starting a
case.
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PRE-ACTION PROCEDURES FOR FINANCIAL CASES
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PRE-ACTION PROCEDURES FOR PARENTING CASES
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COMPULSORY FAMILY DISPUTE RESOLUTION (PARENTING
CASES)

CONSENSUAL ARBITRATION (FINANCIAL CASES)
POST-FILING DISPUTE
RESOLUTION
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COUNSELLING IN PARENTING CASES
CASE ASSESSMENT & CONCILIATION
CONFERENCES IN FINANCIAL CASES
CONSENSUAL ARBITRATION
(FINANCIAL CASES)
CHILD RESPONSIVE PROGRAM &
LESS ADVERSARIAL TRIAL
Pre-action procedure objectives
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early & full disclosure - exchange information &
documents about prospective case
help resolve differences quickly and fairly
avoid legal action - limit costs & avoid the need to
start a court case.
identify real issues in dispute – reduce time and cost
encourage parties to seek only those orders that are
realistic and reasonable on the evidence.
The pre-action procedure applies to:
■ anyone considering starting a case
■ anyone named as a respondent if a case is
started, and
■ their lawyers (if any)
All prospective parties must:

Participate in dispute resolution services eg. family
counselling, negotiation, conciliation or arbitration.

If DR unsuccessful, write to the other parties, setting
out their claim and exploring options for settlement.

Comply, as far as practicable, with duty of disclosure

Non-compliance (unless exempt) risks serious
consequences, including costs penalties.
What applications are exempt?
■ for divorce only, or
■ for child support only, or
■ where the case includes the Court’s
bankruptcy jurisdiction
■ if Court accepts pre-action not
possible/inappropriate
May
not
be
appropriate
where:
■ urgency
■ allegations of family violence
■ allegations of fraud
■genuinely intractable dispute
■person would be unduly prejudiced or adversely
affected if another person
■ became aware of the intention to start a case
■ time limitation about to expire
■ previous application about same issue in past 12
months
■ genuine dispute about existence of a de facto
relationship, or party’s choice to agree to the
jurisdiction of the Family Law Act 1975
OBLIGATIONS AS A PROSPECTIVE
PARTY TO A CASE

STEP 1 Invite the other parties to participate in dispute
resolution

STEP 2 Agree on a dispute resolution service and attend
the service

STEP 3 Written notice of issues and future intentions

STEP 4 Replying to the notice of claim

STEP 5 Taking other action
Duty to make timely, full and frank
disclosure
Parties should promptly exchange copies of documents
in their possession or control relevant to an issue in
the dispute before as well as after starting a case
including:
■ a schedule of assets, income and liabilities
■ a list of documents in the party’s possession or
control that are relevant to the dispute, and
■ a copy of any document required by the other
party, identified by reference to the list of documents.
Disclosure and exchange of
correspondence – property case
■ 3 most recent taxation returns and assessments
■ documents about any relevant superannuation interest
■ for a corporation (business), trust or partnership - financial
statements for each (including balance sheets, profit and loss
accounts, depreciation schedules and taxation returns) for the
three last financial years
■ for the party or a corporation (business), trust or partnership BAS for 12 months prior to first court date
■ for any corporation, its most recent annual return, listing
directors and shareholders; and the corporation’s constitution
■ for any trust, the trust deed
■ for any partnership, the partnership agreement, including
amendments, and
■ unless the value is agreed, a market appraisal of any item of
property in which a party has an interest
Lawyers’ obligations
Lawyers must as early as practicable:
■ advise clients of ways of resolving the dispute
without starting legal action
■ advise clients of their duty to make full and frank
disclosure, and of the possible consequences of
breach
■ if in the best interests of the client and any child,
endeavour to reach an agreement rather than start or
continue legal action
■ notify client if, in the lawyer’s opinion, it is in the
client’s best interests to accept a reasonable
compromise or settlement
■ in cases of unexpected delay, explain the delay to
their client and whether or not the client may assist to
resolve the delay
Lawyers’ obligations cont’d
■ advise clients of the estimated costs of legal action
■ advise clients about factors which Court may
consider in costs orders
■ actively discourage clients from making ambit
claims or seeking orders which the evidence and
established principles, including recent case law
indicates, is not reasonably achievable, and
■ provide clients with documents prepared by the
Court about:
the social and legal effects of separation
the services provided to families by the Family Law
Courts and by government, community and other
agencies, and
the obligations created by & consequences for failing
to comply with an order.