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Opening the Court Doors

We are on the countdown. Eight days to go until the Courts formally amalgamate and the obvious question is ‘how do you go about seeking the intervention of the new Court in a situation where you are in intractable dispute with your former partner?’

The need to attend for Family Dispute Resolution (“FDR”) or Parenting Mediation and the evidence of that attendance by way of a section 60I certificate became part of the “language” of family law in 2006.  In the subsequent period, Family Dispute Resolution Practitioners and Family Relationship Centres throughout Australia have been inundated with those who have sought to comply with this requirement. Other than in the most extreme of circumstances, most of which are associated with the risk being posed to a child, it is necessary to make a genuine effort to reach an agreement through FDR in relation to a parenting matter before seeking the Court’s intervention. This regime will remain in place for parenting disputes following the amalgamation of the Courts.

In the period since 2006, there has been significantly less focus on efforts to negotiate an agreement in relation to financial matters without seeking the intervention of the Court and some practitioners have taken to initiating financial proceedings with very little, if any, attempt to resolve a matter by negotiation.

Certainly, best practice would dictate that steps be taken to try and exhaust the prospect of the amicable and efficient identification of a property pool available for division, quantifying or getting valued the various items composing part of that pool, and making offers and/or attending mediation or a roundtable conference in the hope of reaching agreement without the need for recourse to the Court.  Obviously, where one party won’t willingly participate in this process, it has been necessary to file proceedings without same having taken place but, in most instances, there is a genuine effort to try and progress the matter by discussion at least by correspondence.

Under the new regime, there will be a need to comply with the pre-action procedure for both financial and parenting proceedings, and take genuine steps to resolve issues in dispute prior to commencing proceedings, unless it is unsafe to do so or a relevant exemption applies.

A “genuine steps certificate” in the approved form will need to be filed with an Initiating Application or Response to Initiating Application, which will clearly outline the filing party’s compliance with the pre-action procedures, the nature of the genuine steps taken to resolve the dispute, or the basis for any claim for an exemption from having to comply with both of these requirements.

A failure to comply with relevant pre-action procedure, in other words, a failure to try and resolve the matter outside the doors of the Court, could result in a matter being adjourned or stayed (meaning that the parties are prevented from progressing the matter until further order of the Court) until a failure to comply is, in fact, rectified.

Significantly, under the new Central Practice Direction, there is provision for a triage service offered by a national assessment team who will, upon the filing of an Application:

  • assess whether the matter is one of a small number of cases which falls into a specialist type of case stream, such as a matter which belong in the Evatt List devoted to better managing serious allegations of violence, the Magellan List (where child sexual abuse allegations are managed), or belongs in Division 1 of the Court by virtue of its exclusive jurisdiction (such as Hague issues, etc);
  • make a decision as to whether a particular matter requires any special procedures as a result of risk associated with family violence;
  • assess whether pre-action procedures have been complied with and, further;
  • make a decision as to where the matter should be allocated as between the two divisions of the Court and also the nature of the first return date, and need for any urgency.

What the pre-action procedure provisions in the new Rules and Case Management Directions make clear is that there is still a significant role to be played by Family Dispute Resolution Practitioners in the community and by Private Mediators. The clear intention is to avoid people filing proceedings unless absolutely necessary, and thereafter make it very difficult to prolong any resolution with the confines of the Court.

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