Process

STAGE 1: PRE-ACTION PROCEDURES

Once you have made the decision to separate from your former partner, the next step is to formalise the separation of your assets and financial affairs. This is a process rather than an event.

The main purpose of pre-action procedures is to enable the parties to attempt to reach agreement about the division of their assets without having to go to court.  

Pre-action Procedures for financial matters are set out in Schedule 1 of the Family Law Rules. Although strictly it does not apply to matters in the Federal Circuit Court all parties are expected to have followed the pre-action procedures before filing an application in the courts.

The main steps involved in this stage are:

Step 1 – Invite the other parties to participate in dispute resolution

A person who is considering filing an application to start a case must

  • Give a copy of the brochure titled “Before you file – pre-action procedures for financial cases” to the other prospective parties to the case; and
  • Invite the other parties to participate in dispute resolution.

Step 2 – Provide disclosure documents

Parties to a case have a duty to make timely, full and frank disclosure of their financial circumstances. There may be serious consequences for failing to disclose, including punishment for contempt of court.  

Parties should promptly exchange copies of financial documents in their possession or control before as well as after starting a case. Examples of documents may include:

  • A schedule of assets, income and liabilities;
  • A list of documents in the partys 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.

Step 3 – Agree on a dispute resolution service and attend the service

Each prospective party must:

  • Agree on an appropriate dispute resolution service
  • Make a genuine effort to resolve the dispute by participating in dispute resolution.

If an agreement is reached, you and the other party may enter into a financial agreement or apply to the court for consent orders.

Step 4 – Written notice of issues and future intentions

If:

  • No dispute resolution service is available;
  • A person refuses or fails to participate; or
  • Agreement is not reached through dispute resolution,

then a person considering applying to a court must give the other person/s written notice of their intention to start a court case (notice of claim) setting out:

  • The issues in dispute;
  • The orders to be sought if a case is started;
  • A genuine offer to resolve the issues; and 
  • A nominated time (at least 14 days after the date of the letter) within which the other person must reply.

Step 5 – Replying to a notice of claim

If you receive a notice of claim, you must within the nominated time, reply to it in writing stating whether the offer is accepted.

Where agreement is reached, you and the other party should consider formalising your agreement by entering a financial agreement or filing an application for consent orders.

Where you do not accept the offer, you must set out in a letter:

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

If you do not respond, the initiating party’s obligation to follow the pre-action procedure ends.

Step 6 – Taking other action

Where an agreement is not reached after reasonable attempts to resolve it by correspondence, other appropriate action may be taken to resolve the dispute, including filing an application in a court.

There are situations where the pre-action procedures will not apply.

For further details please refer to:

  • The prescribed brochure titled: “Before you file – pre-action procedures for financial cases”; and
  • Schedule 1 of the Family Law Rules.

STAGE 2: COMMENCING COURT PROCEEDINGS

Once attempts to finalise property settlement without proceeding to court have been exhausted, the main steps to commencing court proceedings are:

  • Court documents: Prepare the necessary court documents. The documents required will depend on the court you are in and the types of orders you are seeking.
  • File and serve: Your court documents will have to be filed in the relevant court registry and personally served on your former partner. At the time of filing your documents, the court will issue you with a court date and time.
  • Response documents: Your former partner will be required to prepare, file, and serve response documents to your application.
  • Court events: At the first court date, most parties will seek procedural orders. This often includes orders about disclosure, valuations, mediation and the next court date. In some situations there may be an interim hearing at the first court date. This could be for interim distribution, spousal maintenance, an injunction, or some other property related matters that cannot wait until the final hearing.
  • Disclosure: Each party to the proceedings has a duty to provide full and frank disclosure. This duty is an ongoing duty and starts before the commencement of court proceedings and continues up until settlement or trial.
  • Mediation: After the first court date and once disclosure has been completed the parties are required to attend mediation. In matters where the net pool of assets are modest the court could order a Conciliation Conference.
  • Arbitration: If the parties do not reach agreement at mediation, another avenue available to parties for property matters is to have their matter decided by an arbitrator. Although arbitration has been around for some time, there is currently a move to have more matters dealt with through arbitration. There are advantages and disadvantages to consider in relation to arbitration.
  • Further court mention: The next court date will likely be to have the matter adjourned to a trial callover where trial directions are made. These are essentially orders regarding preparation for the trial and may include the following:
    • Providing updated disclosure
    • Arranging for updated valuations
    • Having each party file their trial documents which they intend to rely on and
    • Having each party file their case outline including the orders they are asking for.
  • Trial/hearing: the final hearing is when each party will present their case, be cross-examined, and at the end of the hearing a judge will determine the case.