Separation can be a confusing and stressful time for all parties, especially when people have their finances intermingled. It can be overwhelming to deal with this at separation, but it is imperative that you are careful with these matters. The Family Law Rules 2004 sets out pre-action procedures which apply in financial cases.
Genuine effort to attempt to resolve disputes
Before making an application to the Court to resolve financial issues pursuant to the Family Law Act, any party is required to make a genuine effort to attempt to resolve the dispute and/or narrow the issues that require a Court to decide. This means by giving notice to their estranged spouse or former partner and exploring alternatives to Court proceedings to settle the dispute, such as mediation or arbitration.
However, the most important thing that you need to remember is every marriage, every relationship is different and there are exceptional circumstances which may apply. The circumstances in which the Court may accept that it is not possible for the “pre-action procedures” to apply are:
1. If your matter is urgent;
2. If there are allegations of child abuse or an unacceptable risk of child abuse;
3. If there are allegations of family violence or a risk of family violence;
4. If there has been fraud by either party;
5. If there are genuine intractable economic dispute between the parties;
6. If there is an undue prejudice or a party may be adversely affected if the other party is given notice of an intention to commence proceedings; or
7. Where a limitation period is due to expire.
Pre-action procedures do not apply to divorce, child support or applications regarding bankruptcy.
The objectives of pre-action procedures
The benefits of the parties complying with the pre-action procedures can save the parties significantly in legal fees. The objectives of the pre-action procedures are:
1. To encourage early full and frank disclosure through exchange of documents, statements and other information about that parties case;
2. To resolve matters quickly and to avoid legal proceedings – in turn, this limits legal costs of both parties;
3. Where there cannot be agreement, to limit the issues that need to be litigated in a Court;
4. To provide insight to the parties and to encourage them to seek orders that are realistic and reasonable.
When a party commences an application, the Court may consider whether the pre-action procedures have been complied with and met. If not, then the Court may make orders for a non-complying party to pay cost for the other party, or may take non-compliance into account at a final hearing. This however, very rarely occurs.
So, what do you have to do?
Essentially, there are five main steps to follow.
Step 1: Invite the other party to participate in dispute resolution, such as a mediation.
Step 2: Agree on type of dispute resolutions and schedule a date and time to attend.
If the parties agree to attend a mediation, then both parties should agree to make a genuine effort to resolve the dispute. If an agreement is reached, then the parties can finalise the agreement by way of Consent Orders or a Financial Agreement.
Prior to parties attending a mediation or dispute resolution, parties should exchange full and frank disclosure of all information relating to the issues in dispute and any documents that support either parties case. This should enable the parties to prepare a schedule setting out their assets, liabilities and incomes. In property settlement matters, the Court will most likely order the following documents to be exchanged:
1. the party’s three most recent payslips or other documents evidencing income, such as contracts of employment;
2. the party’s three most recent taxation returns and assessments
3. documents about any relevant superannuation interest, including:
a. the completed Superannuation Information Form
b. for a self-managed superannuation fund, the trust deed and the last three financial statements
c. the value of the superannuation interest, including how the value has been calculated and any documents working out the value
4. for a corporation (business), trust or partnership where the party has a duty of disclosure under Rule 13.04:
a. financial statements for each (including balance sheets, profit and loss accounts, depreciation schedules and taxation returns) for the three last financial years
5. for the party or a corporation (business), trust or partnership where the party has a duty of disclosure under Rule 13.04:
a. any Business Activity Statements for the 12 months ending immediately before the first court date
6. for any corporation, its most recent annual return, listing directors and shareholders; and the corporation’s constitution
7. for any trust, the trust deed
8. for any partnership, the partnership agreement, including amendments, and
9. unless the value is agreed, a market appraisal of any item of property in which a party has an interest
Step 3: If there is no dispute resolution service available or a party refuses to attend, then you should provide written notice of issues pertaining to your matter and future intentions. If you have attended a mediation and there was no agreement reached, you should also provide written notice of your intention to commence proceedings setting out the issues in dispute and orders that you are seeking. It is important that you allow the other party a reasonable time to reply to your notice, such as 14 days.
Step 4: If you receive notice from the other party that they intend to commence proceedings, it is important to seek urgent legal advice and reply within the time frame stated. If you do not respond, the other party’s obligations to follow the pre-action procedures ends and they can reply on this notice to support their application.
Step 5: Where there is no agreement reached after reasonable attempts, then it may be necessary to file an application in Court.
If you need help to navigate the pre-action proceedings, please feel free to call MCG Legal and speak with any of our Gold Coast Family Lawyers on 07 5591 2222 and set up a free consultation to talk to one of our experienced lawyers.