pre action procedure for parenting cases

Transcription

1 FAMILY COURT OF AUSTRALIA Before you file pre actio procedure for paretig cases This brochure provides iformatio for people cosiderig applyig to a court for paretig orders. It provides iformatio about the pre-actio procedures required before startig a case. For more iformatio, see Rule 1.05 ad Schedule 1 of the Family Law Rules I the Family Court, similar pre-actio procedures apply to fiacial cases. For more iformatio, see the brochure Before you file pre-actio procedure for fiacial cases. What is required? The Family Law Act 1975 requires a perso to make a attempt to resolve disputes about paretig matters usig family dispute resolutio services before applyig to a court for a paretig order. There are some exceptios to this ad these are summarised i the brochure Compulsory Family Dispute Resolutio published by the Australia Govermet. Further iformatio about these requiremets, which apply to all courts, ca be foud at or by telephoig the Family Relatioships Advice lie o This brochure outlies the further steps required by the Family Law Rules 2004, which you will eed to take before filig a applicatio i the Family Court. These requiremets are desiged to assist you, the other parties to your dispute ad the Court to resolve your dispute as quickly ad as amicably as possible while takig ito accout the best iterests of the child/re. Before you file a applicatio Except for those situatios listed uder What applicatios are exempt? (see opposite), all prospective parties to a applicatio i the Family Court must do the followig thigs before filig a applicatio i the Family Court: 1 If the attempts at family dispute resolutio are usuccessful, you will eed to exchage some writte correspodece with the other prospective parties to clearly idetify exactly what issues remai i dispute. This is explaied i more detail i the Step-by-Step sectio of this brochure. 2 Comply, as far as possible, with the duty of disclosure (see page 4 of this brochure). What applicatios are exempt? Uless there are good reasos for ot doig so, all prospective parties are expected to have followed the pre-actio procedures before filig a applicatio to start a case i the Family Court. The circumstaces i which the Court may accept that it is ot possible or appropriate for the pre-actio procedures to be followed i cases: ivolvig urgecy ivolvig allegatios of child abuse or risk of abuse ivolvig allegatios of family violece or risk of family violece where there is a geuiely itractable dispute (for example, where oe perso refuses to egotiate) or where a perso would be uduly prejudiced or adversely affected if aother perso became aware of the itetio to start a case (for example, where there is a geuie cocer that the other perso will attempt to defeat your applicatio if he/she has this prior kowledge). These are ot the oly circumstaces where there may be good reasos for ot followig the pre-actio procedures. If you are relyig o some other reaso, thik about whether you ca justify it as a good reaso. You may be called upo to do so if court actio is commeced ad the procedures have ot bee followed. This brochure provides geeral iformatio oly ad is ot provided as legal advice. If you have a legal issue, you should cotact a lawyer before makig a decisio about what to do or applyig to the Court. The Family Court caot provide legal advice. FAMILY COURT OF AUSTRALIA

2 Geeral iformatio ad resposibilities The objectives of the pre-actio procedure is to: ecourage early ad full disclosure through the exchage of iformatio ad documets about the prospective case. help people resolve their differeces quickly ad fairly, ad to avoid legal actio where possible. This will limit costs ad hopefully avoid the eed to start a court case. help parties (where a agreemet caot be reached out of court) to idetify the real issues i dispute. This should help reduce the time ivolved ad the cost of the case. ecourage parties to seek oly those orders that are realistic ad reasoable o the evidece. Your obligatios as a prospective party to a case The best iterests of the child is the Court s primary cosideratio whe resolvig or determiig family disputes. At all stages durig the pre-actio egotiatios ad durig the case itself should you ultimately apply to court, you must keep i mid the followig: the eed to protect ad safeguard the iterests of the child the importace of a cotiuig relatioship betwee the child ad both parets, ad the beefits the child gais from the parets cooperatig with oe aother the potetial damage to a child ivolved i a dispute, particularly if the child is ecouraged to take sides or take part i ay dispute betwee the parets the importace of idetifyig issues early ad explorig optios for settlemet the eed to avoid protracted, uecessary, hostile ad iflammatory exchages the impact of correspodece o the recipiet, particularly o the other party the eed to seek oly those orders that are reasoably achievable o the evidece ad that are cosistet with curret law, ad the duty to make full ad frak disclosure of all material facts, documets ad other iformatio relevat to the dispute see page 4 for more o disclosure. Parties must ot: use the pre-actio procedure for a improper purpose (for example, to harass the other party or to cause uecessary cost or delay), or i correspodece, raise irrelevat issues or issues that might cause the other party to adopt a etreched, polarised or hostile positio. The Court expects parties to take a sesible ad resposible approach to pre-actio procedures. However, you are ot expected to follow the pre-actio procedures to your detrimet if reasoable attempts to follow them have ot achieved a satisfactory solutio. 2

3 The pre-actio procedure ~ step-by-step STEP 1 Comply with the requiremets of Compulsory Family Dispute Resolutio This process is set out i the Compulsory Family Dispute Resolutio brochure published by the Australia Govermet. For more iformatio, icludig iformatio about the exceptios to participate i Compulsory Family Dispute Resolutio go to or telephoe Further iformatio ca also be foud i the brochure published joitly by the Family Court of Australia ad the Federal Circuit Court etitled Compulsory Family Dispute Resolutio court procedures ad requiremets. To obtai a copy of this brochure: go to or o the website call , or visit your earest family law registry. STEP 2 Eter ito a paretig pla or apply for coset orders If a agreemet is reached, you ad the other party may eter ito a paretig pla or apply to court for coset orders. For more iformatio o paretig plas, go to For more iformatio or to get a Coset Orders Kit: go to or o the website call , or visit your earest family law registry. If the family dispute resolutio process (see step 1) was usuccessful i resolvig the dispute, bear i mid that there are other dispute resolutio processes such as family couselig, egotiatio, cociliatio, ad arbitratio which you ad the other potetial parties could participate i, to assist all parties resolve the dispute. You ca participate i may of these dispute resolutio processes at ay time ad i all of them, before commecig court actio. STEP 3 If your case is ot resolved give writte otice of issues ad future itetios A perso cosiderig applyig to a court must give the other perso/s writte otice of the itetio to start a court case (called a otice of claim), settig out: the issues i dispute the orders to be sought if a case is started a geuie offer to resolve the issues, ad a omiated time (at least 14 days after the date of the letter) withi which the other perso must reply. STEP 4 Replyig to the otice of claim If you receive this otice of claim, you must, withi the omiated time, reply to it i writig statig whether the offer is accepted. If a agreemet is reached, refer back to Step 2. If you do ot accept the offer, you must set out i a letter: the issues i dispute the orders you will seek if a case is started a geuie couter offer to resolve the issues, ad a omiated time (at least 14 days after the date of the letter) withi which the iitiatig claimat must reply. If you do ot respod, the iitiatig party s obligatio to follow the pre-actio procedure eds. STEP 5 If o agreemet is reached: takig court actio Where a agreemet is ot reached after reasoable attempts to resolve it by correspodece, other appropriate actio may be take to resolve the dispute, icludig filig a applicatio i a court. 3

4 Compliace If a case is subsequetly started, the Court may cosider whether these pre-actio procedures have bee followed, ad if ot there may be cosequeces of o compliace. The Court may: where there is ureasoable o-compliace, order the o-complyig party to pay all or part of the costs of the other party or parties i the case, ad/or take compliace or o-compliace ito accout whe makig orders about how your case will progress through the court. The Court may also esure that the complyig party is i o worse a positio tha he or she would have bee if the pre-actio procedure had bee complied with. Examples of o-compliace with a pre-actio procedure iclude: ot sedig a writte otice of a proposed applicatio ot providig sufficiet iformatio or documets to the other party ot followig a procedure required by the pre actio procedure ot respodig appropriately withi the omiated time to the writte otice of proposed applicatio, ad ot respodig appropriately withi a reasoable time to ay reasoable request for iformatio, documets or other requiremets of this procedure. Disclosure ad exchage of correspodece Parties to a case have a duty to make timely, full ad frak disclosure of all iformatio relevat to the issues i dispute. There may be serious cosequeces for failig to disclose, icludig puishmet for cotempt of court. The Family Court s brochure Duty of Disclosure provides more iformatio. Parties should promptly exchage copies of documets i their possessio or cotrol relevat to a issue i dispute before, as well as after, startig a case. Examples of documets iclude medical reports, school reports, letters, drawigs ad photographs. Parties must ot use a documet disclosed by aother party for ay purpose other tha to resolve or determie the dispute for which it was disclosed. That is, i seekig the documets through the pre-actio procedure, the party receivig them is cosidered by the Court to have give a udertakig that they will be used for the specific purposes of the case oly. Expert witesses As part of the pre-actio procedure, you or the other parties may require that iformatio be sought from a expert witess. There are strict rules about istructig ad obtaiig reports from a expert. I summary: A expert must be istructed i writig ad must be fully iformed of his or her obligatios. Where possible parties should seek to retai a expert o a issue oly where a expert s evidece is ecessary to resolve the dispute. Where practicable, parties should agree to obtai a report from a sigle expert istructed by both parties. If separate expert reports are obtaied, the Court requires the reports to be exchaged. 4

5 Legal advice You should seek legal advice before decidig what to do. A lawyer ca help you uderstad your legal rights ad resposibilities, ad explai how the law applies to your case. A lawyer ca also help you reach a agreemet with the other party without goig to court. You ca seek legal advice from a: legal aid office commuity legal cetre, or private law firm. Court staff ca help you with questios about court forms ad the court process, but caot give you legal advice. Lawyers obligatios Lawyers must, as early as practicable: advise cliets of ways of resolvig the dispute without startig legal actio advise cliets of the obligatios ad requiremets imposed by Sectios 60I ad 60J of the Family Law Act 1975 advise cliets of their duty to make full ad frak disclosure ad of the possible cosequeces of breachig that duty subject to it beig i the best iterests of the cliet ad ay child, edeavour to reach a agreemet rather tha start or cotiue legal actio otify the cliet if, i the lawyer s opiio, it is i the cliet s best iterests to accept a compromise or settlemet where, i the lawyer s opiio, the compromise or settlemet is a reasoable oe i cases of uexpected delay, explai the delay to their cliet ad whether or ot the cliet may assist to resolve the delay advise cliets of the estimated costs of legal actio advise cliets about the factors which may affect the Court i cosiderig costs orders actively discourage cliets from makig ambit claims or seekig orders which the evidece ad established priciples, icludig recet case law idicates, is ot reasoably achievable, ad provide cliets with documets prepared by the Court (if applicable) about: ~ the legal aid services ad dispute resolutio services available to them; ad ~ the legal ad social effects ad the possible cosequeces for childre of proposed litigatio. The Court recogises that the pre-actio procedure caot override a lawyer s duty to his or her cliet. It is accepted that it is sometimes impossible to comply with a procedure because a cliet may refuse to take advice. However a lawyer has a duty as a officer of the Court ad must ot mislead the Court. If a cliet wishes ot to disclose a fact or documet which is relevat to the case, a lawyer has a obligatio to take the appropriate actio, that is, cease to act. 5

6 More iformatio For more iformatio, icludig access to ay of the legislatio, forms or publicatios listed i this brochure: go to o the website call , or visit a family law registry ear you. AUSTRALIAN CAPITAL TERRITORY Caberra ~ Cr Uiversity Ave ad Childers St Caberra ACT 2600 NEW SOUTH WALES Albury ~ 463 Kiewa St Albury NSW 2640 Dubbo ~ Cr Macquarie ad Wigewarra Sts Dubbo NSW 2830 Lismore ~ Level 2, 29-31Molesworth St Lismore NSW 2480 Newcastle ~ 61 Bolto St Newcastle NSW 2300 Parramatta ~ 1-3 George St Parramatta NSW 2150 Sydey ~ Goulbur St Sydey NSW 2000 Wollogog ~ Level 1, 43 Burelli St Wollogog NSW 2500 NORTHERN TERRITORY Alice Sprigs ~ Westpoit Buildig, Cr Railway Terrace ad Stott Terrace Alice Sprigs NT 0870 Darwi ~ Supreme Court Buildig, State Square Darwi NT 0800 QUEENSLAND Brisbae ~ 119 North Quay Brisbae Qld 4000 Cairs ~ Level 3 ad 4, 104 Grafto St Cairs Qld 4870 Rockhampto ~ 46 East St (Cr Fitzroy St), Rockhampto Qld 4700 Towsville ~ Level 2, 143 Walker St Towsville Qld 4810 SOUTH AUSTRALIA Adelaide ~ 3 Agas St Adelaide SA 5000 TASMANIA Hobart ~ Davey St Hobart Tas 7000 Laucesto ~ Level 3, ANZ Buildig, Cr Brisbae ad George Sts Laucesto Tas 7250 VICTORIA Dadeog ~ Robiso St Dadeog Vic 3175 Melboure ~ 305 William St Melboure Vic 3000 WESTERN AUSTRALIA Perth ~ Family Court of Wester Australia 150 Terrace Rd Perth WA The Family Court respects your right to privacy ad the security of your iformatio. You ca read more about the Courts commitmets ad legal obligatios i the fact sheet The courts ad your privacy. The fact sheet icludes details about iformatio protectio uder the privacy laws ad where privacy laws do ot apply. 6 BRPREPAR_0313 V2 DISTRIBUTED IN ACCORDANCE WITH RULE 1.05 AND SCHEDULE 1 APPROVED BY THE PRINCIPAL REGISTRAR IN ACCORDANCE WITH THE FAMILY LAW RULES 2004