Before you file pre action procedure for financial cases

Transcription

1 FAMILY COURT OF AUSTRALIA Before you file pre actio procedure for fiacial cases This brochure provides iformatio for people cosiderig applyig to the Family Court for fiacial orders. I particular, it provides iformatio about pre-actio procedures required before startig a case. For more iformatio, see Rule 1.05 ad Schedule 1 of the Family Law Rules Pre-actio requiremets also apply to paretig disputes. For more iformatio see the separate brochure Before you file - pre-actio procedure for paretig cases. What is required? The aim of the pre-actio procedures is to explore areas of resolutio ad, where a dispute caot be resolved, to arrow the issues that require a court decisio. This should cotrol costs ad if possible, resolve disputes quickly, ideally without the eed to apply to a court. The pre-actio procedure applies to: ayoe cosiderig startig a case ayoe amed as a respodet if a case is started, ad their lawyers (if ay). The Family Law Rules require prospective parties to geuiely try to resolve their dispute before startig a case. Except for those situatios listed uder the headig What applicatios are exempt?, all prospective parties must: 1 Participate i dispute resolutio services, such as family cousellig, egotiatio, cociliatio or arbitratio. 2 If dispute resolutio is usuccessful, write to the other parties, settig out their claim ad explorig optios for settlemet. 3 Comply, as far as practicable, with the duty of disclosure (see page 4). Ayoe who does ot comply (uless exempt) risks serious cosequeces, icludig costs pealties. See Compliace o page 2. What applicatios are exempt? Pre-actio procedure is ot required for applicatios: for divorce oly, or for child support oly, or where the case icludes the Court s bakruptcy jurisdictio. Also, 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 family violece ivolvig allegatios of fraud where there is a geuiely itractable dispute (for example, where oe perso refuses to egotiate) 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 would attempt to defeat the claim if they had this prior kowledge) where a time limitatio is close to expirig where there has bee a previous applicatio about the same issue or subject i the last 12 moths, ad where there is a geuie dispute about either the existece of a de facto relatioship, or whether a party s choice to agree to the jurisdictio of the Family Law Act 1975 i relatio to the property or maiteace of a party to a de facto relatioship should be set aside. 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 parties resposibilities Pre-actio procedure objectives To ecourage early ad full disclosure through the exchage of iformatio ad documets about the prospective case. To 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. Where a agreemet caot be reached out of court, to help parties idetify the real issues i dispute. This should help reduce the time ivolved ad the cost of the case. To ecourage parties to seek oly those orders that are realistic ad reasoable o the evidece. YOUR OBLIGATIONS AS A PROSPECTIVE PARTY TO A CASE At all stages durig the pre-actio egotiatios ad durig the case itself, should you ultimately apply to a court, you must keep i mid: 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 reader, particularly o the other party i the case the eed to seek oly those orders that are realistic ad reasoable o the evidece ad that are cosistet with curret law the priciple of proportioality ad the eed to cotrol costs, because it is uacceptable for the costs of ay case to be disproportioately high compared with the fiacial value of the subject matter of the dispute, 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. You are ot expected to follow the pre-actio procedures to your detrimet if reasoable attempts to follow them have ot achieved a satisfactory result. Compliace If a case is the started, the Court may cosider whether the requiremets have bee met ad, if ot, what the cosequeces should be (if ay). 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. (See, for example, Family Law Rules 1.10, ad ) I additio, the Court may esure that the complyig party is i o worse a positio tha he or she would have bee if the other party had complied with the pre-actio procedure. Examples of o-compliace with a pre-actio procedure iclude: ot sedig a writte otice of proposed applicatio ot providig sufficiet iformatio or documets to the other party ot followig a procedure required by the preactio 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. 2

3 The pre-actio procedure ~ step-by-step STEP 1 Ivite the other parties to participate i dispute resolutio A perso who is cosiderig filig a applicatio to start a case must: 1 Give a copy of this brochure to the other prospective parties to the case. 2 Ivite the other parties to participate i dispute resolutio. For more iformatio about dispute resolutio or to fid a agecy ear you: go to or call STEP 2 Agree o a dispute resolutio service ad atted the service Each prospective party must: agree o a appropriate dispute resolutio service, ad make a geuie effort to resolve the dispute by participatig i dispute resolutio. If a agreemet is reached, you ad the other party may eter ito a fiacial agreemet or apply to court for coset orders. For more iformatio, or to get a Coset Order Kit, go to call or visit your earest family law registry. STEP 3 Writte otice of issues ad future itetios If: o dispute resolutio service is available a perso refuses or fails to participate, or agreemet is ot reached through dispute resolutio, the 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. This brochure must be attached to the otice of claim. 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. Where agreemet is reached, you ad the other party should cosider formalisig your agreemet by eterig a fiacial agreemet or filig a applicatio for coset orders. Where 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 claimat must reply. If you do ot respod, the iitiatig party s obligatio to follow the pre-actio procedure eds. STEP 5 Takig other 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 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 Court s Duty of Disclosure provides more iformatio. I summary, parties should promptly exchage copies of documets i their possessio or cotrol relevat to a issue i the dispute before as well as after startig a case. Examples of documets may iclude: a schedule of assets, icome ad liabilities a list of documets i the party s possessio or cotrol that are relevat to the dispute, ad a copy of ay documet required by the other party, idetified by referece to the list of documets. I particular, parties are ecouraged to refer to the Fiacial Statemet ad Rules 4.15, 12.02, ad as a guide to what iformatio to provide ad documets to exchage. Rule sets out documets that do ot eed to be produced. These iclude documets where there is a claim for privilege from disclosure or documets that have already bee disclosed ad where there has bee o chage likely to affect the result of the case. The documets that the Court would cosider as appropriate to be exchaged iclude: I a maiteace case the party s taxatio retur ad taxatio assessmet for the most recet fiacial year the party s bak records for the previous 12 moths if the party receives wage or salary paymets, the party s three most recet pay slips if the party ows or cotrols a busiess, the busiess s Busiess Activity Statemets for the previous 12 moths, ad ay other documet relevat to determiig the icome, expeses, assets, liabilities ad fiacial resources of the party. I a property settlemet case the party s three most recet taxatio returs ad assessmets documets about ay relevat superauatio iterest, icludig: ~ the completed Superauatio Iformatio Form ~ for a self-maaged superauatio fud, the trust deed ad the last three fiacial statemets ~ the value of the superauatio iterest, icludig how the value has bee calculated ad ay documets workig out the value for a corporatio (busiess), trust or partership where the party has a duty of disclosure uder Rule 13.04: ~ fiacial statemets for each (icludig balace sheets, profit ad loss accouts, depreciatio schedules ad taxatio returs) for the three last fiacial years for the party or a corporatio (busiess), trust or partership where the party has a duty of disclosure uder Rule 13.04: ~ ay Busiess Activity Statemets for the 12 moths edig immediately before the first court date for ay corporatio, its most recet aual retur, listig directors ad shareholders; ad the corporatio s costitutio for ay trust, the trust deed for ay partership, the partership agreemet, icludig amedmets, ad uless the value is agreed, a market appraisal of ay item of property i which a party has a iterest Where a party is uable to produce a documet for ispectio, it is reasoable for the party to be required to provide writte authority authorisig a third party (for example, a accoutat) to provide a copy of the documet to the other party, where this is practicable. Parties should agree to a reasoable place ad time for the documets to be ispected ad copied at the cost of the perso requestig the copies. 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. Where there are disagreemets about disclosure, it may be appropriate for a applicatio to be filed with the Court. 4

5 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 experts reports are obtaied, the Court requires the reports to be exchaged. Legal advice You should get 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 get 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. Family Relatioship Services For help resolvig a dispute out of court, go to: or call Lawyers obligatios Lawyers must as early as practicable: advise cliets of ways of resolvig the dispute without startig legal actio advise cliets of their duty to make full ad frak disclosure, ad of the possible cosequeces of breachig that duty 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 about: ~ the social ad legal effects of separatio ~ the services provided to families by the court ad by govermet, commuity ad other agecies, ad ~ the obligatios created by a order ad the cosequeces for failig to comply with a order. 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. These services provide assistace to ayoe who is affected by family relatioship or separatio issues. 5

6 More iformatio For more iformatio, icludig access to the Family Law Act 1975, the Rules of the court ad ay of the 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 BRPREFIN V3 DISTRIBUTED IN ACCORDANCE WITH FAMILY LAW RULES RULE 1.05 AND SCHEDULE 1 APPROVED BY THE PRINCIPAL REGISTRAR IN ACCORDANCE WITH THE FAMILY LAW RULES 2004