Is there anything I have to do before I can go to the Family Court about my property law issues?
There are certain steps you must take before filing an application in the Family Court of WA about property issues. These are sometimes referred to as pre-filing procedures or pre-action procedures.
The purpose of these steps is to encourage the people involved in a dispute over property to try to resolve their differences and come to an agreement without the need to go to court. Going to Family Court can be a lengthy and expensive process. It can take more than 18 months to reach the trial stage of a Family Court property matter. Many people also find the process very stressful and if not managed carefully, it can also have a negative impact on your children. Before starting legal proceedings, seek legal advice to help you decide if going to court is the best option for you, or if there may be other ways to resolve your dispute.
What are the steps I need to take?
If you want to apply to the Family Court for orders about your property or finances, you must follow the steps set out in the Family Law Rules 2004 (Cth). These steps include:
- You must make a genuine effort to resolve the dispute by negotiating with the other person or attending other methods if dispute resolution such as conciliation, arbitration or counselling. You will need to make inquiries about available dispute resolution services and invite the other person to participate in dispute resolution.
- You must give a copy of the pre-action procedures set out in Schedule 1 of the Family Law Rules 2004 (Cth) to the other person (usually your ex-partner) involved.
- If you cannot come to an agreement with the other person, you need to write to the other person:
- informing them that you intend to start a case in Family Court
- setting out the issues
- stating what you will be seeking from the court
- making a genuine offer to resolve the issues, and
- nominating a time (at least 14 days after the date of the letter) for the other person to respond
- Both you and the other person involved have to make “full and frank disclosure” of any and all relevant information and documents.
What is "full and frank disclosure"?
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 a final order. In property cases you might need to provide information about your earnings, property, trusts and liabilities (debts).
You should get legal advice on how to ensure you make full and frank disclosure.
Are there any exceptions to following these steps?
There are some exceptions to following these pre-action procedures, including where there are allegations of family violence, where the matter is urgent, or where there are allegations of fraud. Please note that there are other exceptions. You should seek legal advice about your particular situation.
Do I need to attend mediation before going to court?
If both you and the other person are legally represented, you will need to have thought about arranging a private mediation style conference with the other person and their lawyer. The judicial officer in charge of your case will expect you to undertake a mediation conference before they will allow your matter to go on through the court. If you do not undertake a conference, your lawyer will need to explain the reasons for this to the court.
What happens if I don't follow the steps before going to court?
There can be serious consequences if you do not follow the steps set out above. These consequences could 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 or the other party has not followed the procedures.
Where can I get more information?
Last reviewed: 02/11/2012