Pre-Action Procedures: Your Obligation to Participate in Dispute Resolution
The pre-action procedures require separating parties to try to resolve any dispute (whether its about children, property or both) before they make an application to the Family Court.
There are some exceptions to the requirement to comply with the pre-action procedures (that is, to participate in dispute resolution).
Some dispute resolution options include: negotiation, mediation, collaboration, arbitration & litigation.
Children
Rule 1.05 of the Family Law Rules 2004 says that you must comply with the “pre-action procedures” before you begin a case in the Family Court about children.
If dispute resolution fails to resolve your dispute, you must obtain and file a section 60i Certificate together with your application to the Family Court.
Only an accredited registered family dispute resolution practitioner can give you a section 60i Certificate.
Some of the exceptions to the requirement to comply with the pre-action procedures (as they relate to disputes about children) include:
- your matter is urgent (for example, you have reasonable grounds to believe that the other party may abduct the children or relocate with them without your consent)
- your case involves allegations of child abuse or family violence or risk of the same
- your matter would be unduly prejudiced (for example, it may disadvantage your case if the other party was aware of your intention to pursue the matter and potentially commence Court action)
- there has been a previous application in relation to the same issues within the 12 months immediately preceding your new application
If you do not have a section 60i Certificate and your matter does not fall within one of the exceptions, the Court will refuse to accept your application and you will not be permitted to commence a case in the Family Court.
The Family Court has published a brochure called “Before You File- Pre-Action Procedure for Parenting Orders” that you can download below.
Property
If dispute resolution fails to resolve your dispute, it is not mandatory (that is, it is not necessary) to file a section 60i Certificate together with your application to the Family Court.
Some of the exceptions to the requirement to comply with the pre-action procedures (as they relate to disputes about property) include:
- your matter is urgent (for example, you have reasonable grounds to believe that the other party may sell or dispose assets of the relationship without your knowledge or permission)
- your case involves allegations of family violence or fraud or risk of the same
- your matter would be unduly prejudiced (for example, it may disadvantage your case if the other party was aware of your intention to pursue your claim and potentially commence Court action)
- there has been a previous application in relation to the same issues within the 12 months immediately preceding your new application
What happens if the parties have not complied with the pre-action procedures?
Usually the first Court event, after an application about property is filed, is a procedural hearing.
At the first procedural hearing, the Magistrate will ask (amongst other things) questions about whether the parties have complied with the pre-action procedures, including whether the parties have tried dispute resolution services.
Where the parties have not tried alternative dispute resolution, the Magistrate will ask why and most likely make an Order that the Court proceedings be adjourned to enable the parties to attend dispute resolution.
Where the parties have tried alternative dispute resolution, the Magistrate may dispense with the requirement that the parties attend a Conciliation Conference (this will quicken the process of the case through the Court system).
The Family Court has published a brochure called “Before You File- Pre-Action Procedure For Financial Cases” that you can download below.
Your duty of disclosure starts with the pre-action procedures
It is very important to understand that both you and your ex-partner have a duty to make full and frank disclosure and that this duty starts with the pre-action procedures.
What happens if we reach an agreement at dispute resolution?
If you and your ex reach an agreement, the best option is to “make it legal”.
In most cases, “make it legal” means that a Form 11 Application for Consent Orders will need be filed with the Family Court.
A Form 11 Application will ensure that your agreement is binding, enforceable and final.
If you file a Form 11 with the Court, you will not be required to go to or appear in Court. It will, however, need to be submitted to the Court for their approval.
Having an informal agreement (that is, anything other than a Form 11, such as evidencing your agreement with a Statutory Declaration) will mean that your agreement is NOT binding, enforceable and final. In some circumstances, this could have very serious and far reaching personal and financial consequences in the future.
What happens if we can’t reach an agreement at dispute resolution?
You can try a different dispute resolution service.
If all attempts to resolve your dispute fail, you can make an application to the Family Court of Western Australia.
What happens if my ex refuses to be involved in dispute resolution or frustrates the process?
Ultimately, if one party refuses to meaningfully participate in dispute resolution, the other party will need to file an Application in the Family Court. A FDR practitioner can issue a section 60i Certificate in a situation where one party refuses to participate (either participate altogether or genuinely participate) in family dispute resolution.
When the case comes before the Court, the Court will want to know whether the pre-action requirements have been met and, if not, they will determine whether there should be consequences for the party who has failed to comply.
If these circumstances, the Court may order that:
- the party that has refused or failed to comply with the pre-action procedures should pay all or some of the other party’s legal costs; or
- change the way your matter progresses through the Court (as explained previously).
Where you are aware that the other party has no intention to negotiate or be involved in dispute resolution (and this is documented), it may be appropriate to request that a Conciliation Conference be listed as soon as possible
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