What to do before going to the Family Court
Before bringing an application before the Family Court, whether in relation to property, financial maintenance or children, the parties are required to make a genuine effort to resolve their dispute.
They must do so by:
- Participating in dispute resolution such as negotiation, conciliation, counselling or mediation. For child related matters, the parties are required to attend Family Dispute Resolution at a registered provider.
- Exchanging a notice of intention to start a case and make genuine offers of settlement by correspondence.
- Complying as far as practicable with the duty of disclosure.
Unless there are good reasons for not complying with the above, such as allegations of child abuse or family violence, there can be serious consequences for failure to comply with pre-action procedures, such as adverse costs orders or the dismissal of a Family Court application.
Notice of intention to start a case and genuine offers
Written notice of an intention to start a case must be sent to the other party to the dispute, before filing an Initiating Application in the Family Court. The notice must set out:
- The issues in dispute;
- The orders sought;
- A genuine offer to resolve the issues; and
- A time (not less than 14 days) within which the other party is required to reply to the notice.
The Family Court expects a party not to file an Initiating Application unless the other party has not responded to a notice or an agreement is unable to be reached.
Duty to give full and frank disclosure in property, financial maintenance and children matters
The Family Law Rules provide that parties to a dispute must give full and frank disclosure of all relevant documents in a timely manner. The duty of disclosure is a continuing obligation which exists until the subject matter in dispute is finalised.
The type of documents that should be disclosed in disputes relating to property and financial maintenance include those which evidence:
- Income/earning capacity – such as payslips or invoices, employment contracts, recent tax returns and assessments;
- Any interests in property that is fully or partially owned or controlled – such as valuations for any real estate or cars and bank statements;
- Any interest in any legal entity that is fully or partially owned or controlled – such as a corporation’s financial statements and tax returns;
- Any financial resources – such as regular financial gifts from a parent, a beneficiaries interest under a discretionary trust and stock options;
- Any liabilities – such as mortgage documents, credit card and loan account statements; and
- Any superannuation interest – such as a superannuation valuation.
If the parties are unsure of what information to disclose, they are encouraged to refer to the Family Court’s Form 13 Financial Statement as a guide.
In disputes relating to children, the parties are required to disclose all information relevant to the issues in dispute, which may include by way of example:
- School reports;
- Medical reports about the child or a parent; and
Documents which are discoverable by each of the parties should be listed in a disclosure list and the parties should then exchange disclosure lists. Each party should then give the other, the opportunity to inspect and take copies of the documents listed in their respective disclosure list.
A party must not make use of documents disclosed by the other party in a family law dispute, for a purpose other than resolution of the dispute to which the document relates.
Undertaking regarding disclosure
If the dispute cannot be resolved and proceeds to a trial in the Family Court, both parties will be required to sign an undertaking in which they acknowledge that they have complied with and will continue to comply with the duty of disclosure.
If the Family Court finds that a party’s undertaking is false or misleading, that party may be found guilty of an offence and be issued with a fine. In serious cases they may be held in contempt of court which is potentially punishable by imprisonment.