pre-action procedure for financial cases. pre-action procedure- financial cases rule 1.05(1)- each...

Pre-action Procedure for Pre-action Procedure for Financial CasesFinancial Cases

Pre-action Procedure- Pre-action Procedure- Financial CasesFinancial Cases

Rule 1.05(1)- Rule 1.05(1)- each prospective party to the each prospective party to the case must comply with the pre‑action case must comply with the pre‑action procedures.procedures.

Schedule 1 part 1 of the Family Law Rules Schedule 1 part 1 of the Family Law Rules

2004 (“FLR”)- provides for the pre-action 2004 (“FLR”)- provides for the pre-action procedures in respect of financial cases.procedures in respect of financial cases.

Objectives of pre-action procedure Objectives of pre-action procedure

Under Sch.1, Pt. 1 cl.1(5) FLR :Under Sch.1, Pt. 1 cl.1(5) FLR :– To encourage early and full disclosure. To encourage early and full disclosure. – To help people resolve their differences and to avoid To help people resolve their differences and to avoid

legal action.legal action.– To help parties identify the real issues in dispute. To help parties identify the real issues in dispute. – To seek only those orders that are realistic and To seek only those orders that are realistic and

reasonable on the evidence. reasonable on the evidence.

– It aims to avoid the need to start a court case andIt aims to avoid the need to start a court case and reduce the time and cost of the case. reduce the time and cost of the case.

Obligations of each partyObligations of each party

Under Sch.1, pt.1 cl.1(1) FLR:Under Sch.1, pt.1 cl.1(1) FLR: General Obligations- each prospective party General Obligations- each prospective party is is

required to make a genuine effort to resolve the required to make a genuine effort to resolve the dispute by: dispute by: – participating in dispute resolution;participating in dispute resolution;– If dispute resolution is unsuccessful, write to the other If dispute resolution is unsuccessful, write to the other

parties, setting out their claim and exploring options for parties, setting out their claim and exploring options for settlement;settlement;

– Comply, as far as practicable, with the duty of Comply, as far as practicable, with the duty of disclosure. disclosure.


Under Sch.1, Pt.1 cl.1(6) FLR:Under Sch.1, Pt.1 cl.1(6) FLR: Each party must:Each party must:

– negotiate subject to the need to protect the interests of negotiate subject to the need to protect the interests of the child;the child;

– explore options for settlement, identify the issues and explore options for settlement, identify the issues and seek resolution of them;seek resolution of them;

– avoid protracted, unnecessary, hostile and avoid protracted, unnecessary, hostile and inflammatory exchanges;inflammatory exchanges;

– seek only those orders that are reasonably achievable seek only those orders that are reasonably achievable on the evidence on the evidence

– control costs; control costs; – make full and frank disclosure of all material facts make full and frank disclosure of all material facts


Under Sch.1, Pt.1 cl.1(7) FLR:Under Sch.1, Pt.1 cl.1(7) FLR: Parties must not:Parties must not:

– use pre-action procedures for an improper use pre-action procedures for an improper purpose (to harass the other party or to cause purpose (to harass the other party or to cause unnecessary cost or delay)unnecessary cost or delay)

– raise irrelevant issues or issues that may cause raise irrelevant issues or issues that may cause the other party to adopt an entrenched, the other party to adopt an entrenched, polarised or hostile position polarised or hostile position

Lawyers’ ObligationsLawyers’ Obligations

Under sch.1 pt.1 cl.6 FLR:Under sch.1 pt.1 cl.6 FLR: Lawyers must as early as practicable: Lawyers must as early as practicable:

– advise clients ways to resolve the dispute instead of advise clients ways to resolve the dispute instead of legal actionlegal action

– advise clients of their duty to make full and frank advise clients of their duty to make full and frank disclosuredisclosure

– notify the client if it is in the client’s best interests to notify the client if it is in the client’s best interests to accept a compromise or settlement and whether the accept a compromise or settlement and whether the settlement is reasonablesettlement is reasonable

– advise clients of the estimated costs of legal action advise clients of the estimated costs of legal action – actively discourage clients from seeking orders that is actively discourage clients from seeking orders that is

not reasonably achievable not reasonably achievable

Conflict of Clients’ interests and Conflict of Clients’ interests and LawyersLawyers

If there is Conflict between: If there is Conflict between: – the duty as a officer of court of not misleading the duty as a officer of court of not misleading

the court and,the court and,– The overriding duty to his or her clientThe overriding duty to his or her client

lawyer has an obligation to take the lawyer has an obligation to take the appropriate action, that is, to cease to act for appropriate action, that is, to cease to act for the client. the client.

Exemption from pre-action Exemption from pre-action proceduresprocedures

under sch1,pt.1 cl.1(4), cases exempted under sch1,pt.1 cl.1(4), cases exempted from following pre-action procedures include from following pre-action procedures include cases:cases:– Involving urgency;Involving urgency;– involving allegations of family violence or fraud;involving allegations of family violence or fraud;– where one person refuses to negotiate;where one person refuses to negotiate;– where a person would be unduly prejudiced or where a person would be unduly prejudiced or

adversely affected if another person became adversely affected if another person became aware of the intention to start a case; aware of the intention to start a case;

The pre-action procedure ~ step-The pre-action procedure ~ step-by-stepby-step

Under sch.1 pt.1 cl.3: As suggested by the Under sch.1 pt.1 cl.3: As suggested by the ““Before you file – pre-action procedure for Before you file – pre-action procedure for financial cases” of FC, there are five steps.financial cases” of FC, there are five steps.

STEP 1 Invite the other parties to participate in STEP 1 Invite the other parties to participate in dispute resolutiondispute resolution – Give a copy of the pre-action procedures to the other Give a copy of the pre-action procedures to the other

prospective parties to the case prospective parties to the case – make inquires of dispute resolution services available make inquires of dispute resolution services available

and invite the other parties to participate in dispute and invite the other parties to participate in dispute resolution.resolution.


STEP 2 Agree on a dispute resolution STEP 2 Agree on a dispute resolution service and attend the serviceservice and attend the service– agree on an appropriate dispute resolution agree on an appropriate dispute resolution

service, and service, and – make a genuine effort to resolve the dispute by make a genuine effort to resolve the dispute by

participating in dispute resolution. participating in dispute resolution. – If an agreement is reached- enter into a If an agreement is reached- enter into a

financial agreement or apply to court for financial agreement or apply to court for consent orders. consent orders.


STEP 3 Written notice of issues and future STEP 3 Written notice of issues and future intentionsintentions

If no dispute resolution service is available or a If no dispute resolution service is available or a person refuses or fails to participate, or agreement person refuses or fails to participate, or agreement is not reached through dispute resolution is not reached through dispute resolution – a person must give the other person/s written notice of a person must give the other person/s written notice of

the intention to start a court case setting out the intention to start a court case setting out the issues in dispute; the issues in dispute; the orders to be sought; the orders to be sought; a genuine offer to resolve the issues, anda genuine offer to resolve the issues, and a nominated time (at least 14 days after the date of the letter) a nominated time (at least 14 days after the date of the letter)

within which the other person must reply.within which the other person must reply.


STEP 4 Replying to the notice of claimSTEP 4 Replying to the notice of claim– After receiving the notice of claim, the other party must After receiving the notice of claim, the other party must

reply in writing stating whether the offer is accepted reply in writing stating whether the offer is accepted – If agreement is reached- enter a financial agreement or If agreement is reached- enter a financial agreement or

file an application of consent orderfile an application of consent order– If the offer is not accepted, set out in a letter: If the offer is not accepted, set out in a letter:

the issues in dispute the issues in dispute the orders you will seek if a case is started the orders you will seek if a case is started a genuine counter offer to resolve the issues, and a genuine counter offer to resolve the issues, and a nominated time (at least 14 days after the date of the letter) a nominated time (at least 14 days after the date of the letter)

within which the claimant must reply.within which the claimant must reply.


STEP 5 Taking other actionSTEP 5 Taking other action– Where an agreement is not reached after Where an agreement is not reached after

reasonable attempts to resolve it by reasonable attempts to resolve it by correspondence, orcorrespondence, or

– the proposed respondent does not respond to a the proposed respondent does not respond to a notice of intention to start a casenotice of intention to start a case

– a party may start a case and file an application a party may start a case and file an application in courtin court

Disclosure and exchange of Disclosure and exchange of correspondencecorrespondence

Under sch.1 pt.1 cl.4 Under sch.1 pt.1 cl.4 – Parties have a duty to make timely, full and Parties have a duty to make timely, full and

frank disclosure of all information relevant to the frank disclosure of all information relevant to the issues in dispute.issues in dispute.

– In summary, documents may include: In summary, documents may include: a schedule of assets, income and liabilities;a schedule of assets, income and liabilities; a list of documents in the party’s possession or a list of documents in the party’s possession or

control that are relevant to the dispute, and control that are relevant to the dispute, and a copy of any document required by the other party, a copy of any document required by the other party,

identified by reference to the list of documents.identified by reference to the list of documents.


In a maintenance case, document includes:In a maintenance case, document includes:– the party’s taxation return (most recent financial year)the party’s taxation return (most recent financial year)– the party’s bank records (previous 12 months)the party’s bank records (previous 12 months)– the party’s three most recent pay slips (salary or wages the party’s three most recent pay slips (salary or wages

payment)payment)– any other document relevant to determining the income, any other document relevant to determining the income,

expenses, assets, liabilities and financial resources of expenses, assets, liabilities and financial resources of the party. the party.

In a property settlement case, document includes In a property settlement case, document includes – the party’s three most recent taxation returnsthe party’s three most recent taxation returns– documents about any relevant superannuation interest documents about any relevant superannuation interest


For a corporation (business), trust or partnership For a corporation (business), trust or partnership where the party has a duty of disclosure, the where the party has a duty of disclosure, the document includes:document includes:– financial statements for the three last financial years financial statements for the three last financial years – Business Activity Statements for the previous 12 months Business Activity Statements for the previous 12 months – For corporation, most recent annual return, constitution For corporation, most recent annual return, constitution – For any trust, the trust deedFor any trust, the trust deed– For any partnership, the partnership agreement For any partnership, the partnership agreement


Third-party disclosureThird-party disclosure– To provide written authority authorising a third party (for To provide written authority authorising a third party (for

example, an accountant) to provide a copy of the example, an accountant) to provide a copy of the document to the other party.document to the other party.

InspectionInspection– Parties should agree to a reasonable place and time for Parties should agree to a reasonable place and time for

the documents to be inspected and copied. the documents to be inspected and copied.

UndertakingUndertaking– The documents will be used for the specific purposes of The documents will be used for the specific purposes of

the case only. the case only.

Expert witnessesExpert witnesses

Under sch.1 pt.1 cl.5:Under sch.1 pt.1 cl.5:– Parties may require information be obtained Parties may require information be obtained

from an expert witness, provided that:from an expert witness, provided that: an expert must be instructed in writing and must be an expert must be instructed in writing and must be

fully informed of his or her obligations; fully informed of his or her obligations; information obtained must relate to an issue in information obtained must relate to an issue in

dispute; dispute; agreement to obtain information from a single expert; agreement to obtain information from a single expert; Exchange of reports if separate experts’ report are Exchange of reports if separate experts’ report are

relied on at a hearing. relied on at a hearing.

Non- ComplianceNon- Compliance Under sch.1 pt.1 cl.1(2) & 1(3): Under sch.1 pt.1 cl.1(2) & 1(3):

– All parties are expected to have followed these pre‑action procedures All parties are expected to have followed these pre‑action procedures before filing an application to start a case, otherwisebefore filing an application to start a case, otherwise

– serious consequences, including costs penalties may resultserious consequences, including costs penalties may result Under sch.1 pt.1 cl.2 Under sch.1 pt.1 cl.2

– If there is Non‑compliance with the pre‑action procedures:If there is Non‑compliance with the pre‑action procedures: The court may take into account non‑compliance when making orders about The court may take into account non‑compliance when making orders about

case management and considering orders for costs.case management and considering orders for costs. Unreasonable non‑compliance- pay all or part of the costs of the other party or Unreasonable non‑compliance- pay all or part of the costs of the other party or

parties in the case. parties in the case. The court may ensure that the complying party is in no worse a position as if the The court may ensure that the complying party is in no worse a position as if the

pre‑action procedures had been complied with. pre‑action procedures had been complied with. Examples of non‑compliance with pre‑action procedures includes:Examples of non‑compliance with pre‑action procedures includes:

– not providing sufficient information,not providing sufficient information,– not following a procedure required by the pre‑action procedures etc.not following a procedure required by the pre‑action procedures etc.

ReferenceReference

This slide has been prepared in accordance This slide has been prepared in accordance with the brochure “with the brochure “Before you file – pre-Before you file – pre-action procedure for financial cases” of action procedure for financial cases” of Family Court of Australia and Family Law Family Court of Australia and Family Law Rules 2004Rules 2004 and for studying purposes only. and for studying purposes only. Please refer to the sources for detailed.Please refer to the sources for detailed.

pre-action procedure for financial cases. pre-action procedure- financial cases rule 1.05(1)- each...

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