What are pre-filing procedures?
Pre-filing procedures are the steps that you must take before you can file an application to start a case in the Family Court of WA.
The purpose of the pre-filing procedures is to encourage parents and other people involved in a family law cases, to try to resolve their differences and come to an agreement without the need to go to court.
Pre-filing procedures are compulsory for most people wanting to start a family law case, however there are some exceptions. See further below under What happens if I do not follow the pre-filing procedures in a parenting/children's issues case? and What happens if I do not follow the pre-filing procedures in a financial/property issues case?.
NOTE: The pre-filing procedures you will need to follow are different, depending whether you want to file an application with the Family Court for orders about your children (parenting orders), or about financial or property issues (property orders).
What must I do before I can start a case for parenting orders?
If you want to apply to the Family Court for parenting orders, you must comply with the following pre-filing procedures:
- You must go to a family dispute resolution provider to attempt to resolve your issues before going to court, and you must get a certificate; UNLESS
- You fit into one of the exemption categories. If you fit into an exemption category, you must complete an Exemption form.
- The exemption categories include situations where there is family violence or child abuse.
The certificate or the Exemption form must be filed with the court as part of your application to start a case, otherwise the court will not let you go ahead. When you file an Exemption form, you sometimes need to file other documents too. You should seek legal advice if you think your case fits into one of the exemption categories.
For more information, please see Family dispute resolution.
What happens if I don't follow the pre-filing procedures in a parenting orders case?
If you do not follow the pre-filing procedures and you try to start a case for parenting orders, the court will not let you file your papers to start your case.
What must I do before I can start a case for property orders?
If you want to apply to the Family Court for orders about your property or finances, the pre-filing procedures require you to follow the pre-action procedures set out in the Family Law Rules.
The pre-action procedures in the Family Law Rules state that you must:
- give a copy of the pre-action procedures to the other person (usually your ex-partner) involved in the case;
- make enquiries about dispute resolution services and invite the other person involved in the case to participate in dispute resolution;
- If, after you have done that, there is no agreement or dispute resolution is unavailable or the other person refuses to go to dispute resolution -
- you must give written notice to the other person involved in the case of your intention to start a case setting out the issues in dispute, the orders sought, an offer to resolve the issues and a time frame for response;
- you and the other person involved in the case, the parties, also have an obligation to make full and frank disclosure of all information relevant to the issues in dispute.
There are some exceptions to following these pre-action procedures, including where there are allegations of family violence, where the matter is urgent, and where there are allegations of fraud. Please note that there are other exceptions. You should seek legal advice about your particular situation.
What happens if I don't follow the pre-filing procedures in a property orders case?
In property cases, there can be serious consequences if you do not follow the pre-filing procedures. These consequences include not being able to move ahead with your case, or the court making an order that you pay legal costs. You should seek legal advice if you have not followed the pre-filing procedures.
What is "full and frank disclosure" in a property orders case?
Full and frank disclosure means you need to provide the other person with any relevant documents and information about your case from the beginning of negotiations and throughout the whole process until you come to an agreement or the court has made an order. In property order cases you might need to provide information about your earnings, trusts, property and liabilities.
You should get legal advice on how to ensure you make full and frank disclosure.
Last reviewed: 01/09/2010