Pre-action procedures

The aim of the pre-action procedures is to provide a process for parties to avoid legal action by reaching an agreement before making an application.

The procedures enable the efficient management of the dispute, and encourage early and full disclosure of information between the parties.

If a matter goes to Court, it is important that both parties are aware of each other's current financial situation, and understand the position of the other party. This reduces the amount of time and money spent in court.

There are 3 steps to the pre-action procedures:

• dispute resolution
• setting out your position
• meeting your duty of disclosure

There are also situations where the Court accepts there are good reasons for not complying with the pre-action procedures. The Court will take compliance with the procedures into account when it is making orders about case management and considering orders for costs.

Step 1: Family dispute resolution

Before applying for Property Orders, you should participate in family dispute resolution, through a service such as mediation, negotiation, conciliation or arbitration.

You can choose the type of dispute resolution that best suits your situation. You can find more information on the Family Relationships Australia site and the family dispute resolution page.

Reaching an agreement with the other party offers many advantages, such as:

• you make your own decisions
• you greatly reduce the financial and emotional costs of the dispute
• the quick resolution reduces the potential damage to a child involved in a dispute between the parents
• you may improve communication with your former partner and be better able to resolve disputes in the future

What happens after dispute resolution?

The next steps depend on whether you have managed to come to an agreement with the other party.

If an agreement is reached during dispute resolution, you and the other party can apply to the Court for a consent order.

If no agreement is reached, you should comply with the rest of the pre-action procedures before you file an application with the Court (see step 2).

Step 2: Exchange letters setting out your positions

You should deliver a letter to the other party setting out:

• the issues in dispute
• the orders that you will seek if a case is started
• a genuine offer to resolve the issues in dispute
• a time (at least 14 days after the date of the letter) within which the other party is required to reply to the notice.

Response

The other party must now respond within the time you stated, and say whether the offer is accepted.

If an agreement is reached, you should consider formalising your agreement by filing an application for consent orders.

If the offer is not accepted, the other party must reply, setting out:

• the issues in dispute;
• the orders they will seek if a case is started;
• a genuine counter-offer to resolve the issues in dispute; and
• a time (at least 14 days after the date of the letter) within which you must reply.

Next steps

If the letters lead to an agreement, you can apply for consent orders.

If the other party does not respond, or you cannot come to an agreement after reasonable attempts, the appropriate next step may be to file an application for property orders.

Step 3: Exchange documents setting out your financial position

If you didn't resolve the dispute through the exchange of letters, and intend to file an application for property and financial orders, you need to exchange documents with the other party. 

You need to do this at the earliest possible opportunity, both before and after you file your application. Each party has until two days before the first court event to exchange documents relevant to the dispute. Examples of documents may include:

• A schedule of assets, income and liabilities
• A list of documents in the party’s possession or control that are relevant to the dispute, and
• A copy of any document required by the other party, identified by reference to the list of documents.

See the Disclosure page for more information on the documents to exchange.

Complying with the procedures

If a case goes to court, the Court will look at whether the pre-action requirements have been complied with, and will consider the consequences of either party failing to comply.

The Court may, where a party has been unreasonable and failed to follow the pre-action procedures:

• order that a party pay all or part of the other party’s costs, or
• change the way your case progresses through the Court.

The Court will also consider whether the complying party is in a worse position than if the pre-action procedures had been complied with. Examples of not complying with a pre-action procedure include:

• not sending written notice of a proposed application
• not providing sufficient information or documents to the other party
• not following a procedure required by the pre-action procedures
• not responding appropriately within the nominated time to the written notice of proposed application, and
• not responding appropriately within a reasonable time to any reasonable request for information, documents or other requirements of this procedure.

The Court accepts there are some circumstances where it is not possible to comply with the pre-action procedures.

Parties must not use the pre-action procedure for an improper purpose, for example, to harass the other party or cause unnecessary cost or delay. You must also not raise irrelevant issues or issues that might cause the other party to adopt an entrenched, polarised or hostile position. You are expected to use the process to make a genuine attempt to resolve your dispute or narrow the issues in dispute.

Circumstances when it might not be appropriate to comply with the procedures

The Court recognises there are situations where it is not appropriate to require compliance with the pre-action procedures. The Court expects parties to take a sensible and responsible approach to pre-action procedures. You are not expected to follow the pre-action procedures to your detriment.

Situations where the pre-action procedures might not be appropriate include when your dispute:

• involves allegations of family violence, or the risk of family violence
• involves allegations of fraud
• is urgent
• would be unduly prejudiced if pre-action procedures were complied with (for example, where there is a genuine concern that the other person would attempt to defeat the claim if they had prior knowledge of the application)
• involves a genuinely intractable dispute
• is made close to a time limitation expiring
• has been the subject of another application in the 12 months immediately before the start of the case.

If you don't comply with the procedures, you will need to explain your reasons to the Court and they will take this into consideration when assessing your compliance with the procedures. You should seek legal advice if you are not intending to follow the procedures.

 

More information

You might find the following resources useful:

• the disclosure page with more details on document disclosure.
• information on the principles the Court applies when dividing property

Last updated: 6-May-2020

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