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Filing a Case in Court – Don’t Be Trigger Happy…

Introduction

In August 2021 the Family Law jurisdiction underwent significant reform. Where previously there existed 2 Courts in which to file a matter in, there is now only one, being the Federal Circuit and Family Court of Australia. With a new forum came new rules, and the Federal Circuit and Family Court (Family Law) Rules 2021 (“the Rules”) were enacted to govern all matters filed in this new Court.

While many of the new Rules mirror the old framework, there now exists new terminology which enunciate new principles and somewhat refines the spirit of the jurisdiction. The aim of this post is to explore these changes, namely to: –

  1. Explore the guiding principles under the Rules.
  2. Identify the obligations imposed on all relevant parties to a case.
  3. Illuminate the consequences of not complying with the new framework of the Rules.

By uncovering these areas, my hope is that all parties reading this – whether self-represented parties, represented and solicitors – will be more informed when choosing to file a Family Law case in the Federal Circuit and Family Court of Australia.

Guiding principles

There has always existed a general norm that parties should explore all alternatives before filing for Court, including mediation and other out-of-Court settlement options (e.g. lawyer-based negotiation). Indeed, going through family law litigation places a heavy burden on parties during an emotionally sensitive time and has a broader (negative) effect on the children involved. Certainly, an out of Court settlement is generally always, on balance, preferable to a long winded Court battle. As all things lawyerly this is merely a general proposition, as exceptions always exist, such as where there exists family violence, or a child is at risk, or there is some ground for urgency that requires that a party file documents immediately.

The guiding principles espoused by the Rules are broadly: –

  1. Transparency – to encourage early disclosure of information between parties.
  2. Alternatives to litigation – to encourage parties to explore out-of-court resolutions.
  3. Efficiency – to provide parties with a procedure to resolve their problem in a cost-effective manner.
  4. Case management – to ensure a case is managed effectively in the event it does proceed to Court.
  5. Practicality– to ensure parties only seek orders available on the evidence.
  6. Purposeful – to ensure the broad overarching purpose of the new Rules is achieved, namely to

Best practices

The Rules also describe various best practices for all parties involved, as well as types of conduct which are considered unfavourable. For example, parties are encouraged to: –

  1. Regard the children’s best interests, including protecting them from harm.
  2. Facilitate the children’s meaningful relationship with the other parent and, if possible, see to the benefits of effective co-parenting.
  3. Consider the negative flow-on effect to a child, especially if they are required to side with one parent.
  4. Identify issues and seek resolution to them.
  5. The impact of all correspondence on the recipient (i.e. tone of voice and language used).
  6. Make full disclosure of all relevant matters.
  7. Take a sensible and responsible approach to resolving their dispute.

Broadly speaking then, the Rules emphasise the need to “behave well” in the context of family law disputes, both before and during litigation. By identifying the general spirit of the jurisdiction, its aim is to have all parties have their behaviour conform with it.

The Rules also stipulate what parties should not do, namely: –

  1. Avoid hostile, inflammatory exchanges.
  2. Not use the pre-action procedures for improper purposes (I.e. stalling tactics or harassing the other party).
  3. Raise irrelevant issues that may cause the other party to become hostile or adopt an entrenched position.

The Genuine Steps Certificate

Provided the parties have complied with the spirit of the Rules and completed everything reasonably possible to resolve the matter outside of Court, filing a matter can be then considered. A lawyer must file a Genuine Steps Certificate (a new inclusion to Family practice and procedure) which: –

  1. Affirms the parties have complied with the pre-action procedures, and;
  2. Which genuine steps have been taken to resolve the parties’ dispute, OR;
  3. (Where a party is seeking a waiver of the pre-action procedures), to identify the basis for this.

Then, it is now incumbent on solicitors (or self represented parties) when filing documents to attest to these genuine steps having occurred. A failure to assure the Court of this may result in the case getting stayed (paused) until attempts are made to resolve the dispute outside of Court, or in Cost orders made against the applying party, or the lawyer themselves.

What must a party do?

In real terms then, what must a party do to ensure that they have complied with the spirit and letter of the Rules? What concrete steps need to be taken before filing for Court?

The Rules stipulate that the following actions need to have been taken before a party can make a case in the Federal Circuit and Family Court of Australia: –

Initiate Family Dispute Resolution

  1. Give a copy of the pre-action procedures to the other party (if it is safe to do so).
  2. Make inquiries about family dispute resolution services.
  3. Invite the other party to attend family dispute resolution.
  4. Cooperate in the process of nominating a family dispute resolution service.
  5. In family dispute resolution service, make a genuine effort to resolve the issues in dispute.

Give a Notice of Intention to Commence Proceedings

If there is no family dispute resolution available, or the other party does not attend, or no agreement is reached in family dispute resolution, a party can then proceed to making it known they intend to start proceedings. This notice must contain the following information: –

  1. The issues in dispute.
  2. The orders the party will be seeking in Court.
  3. A genuine offer to resolve the issues.
  4. A deadline for reply (minimum 14 days).

The responding party must then reply to the Notice, addressing each of the four (4) components above. The Court does not expect that a party will initiate a Court case unless either: –

  1. There is no response to the Notice of Intention to start a proceeding, or;
  2. Agreement could not be reached after a reasonable attempt to settle the matter through correspondence, outside of Court.

Expectations of lawyers

If a party is represented, it is the lawyer who must ensure the above requirements are met. A failure to do so could result in the case being stayed (placed on hold) while the pre-action procedures are fulfilled, and/or costs awards made against the applying party or lawyer themselves. In addition to these procedural requirements, the Rules also place expectations on lawyers to ensure efficient legal process. These are: –

  1. Advising clients of ways to resolve the issues without legal action (e.g. entering into consent orders, mediation).
  2. Advising clients of their duty to make full and frank disclosure, and the repercussions for not doing so.
  3. Endeavour to reach a settled outcome, subject to it being in the client’s and children’s best interests.
  4. Notify the client if it is in their best interests to accept a particular compromise or settlement proposition, if it is a reasonable one.
  5. In cases of unexpected delay, explain the delay and whether the client could assist in resolving it.
  6. Advise client of the estimated costs of legal action.
  7. Advise the client of factors the Court may consider when making costs orders.
  8. Give client Court documents/brochures concerning legal aid services and family dispute resolution services available, as well as the social and legal effects of litigation on children.
  9. Discourage clients from making claims that are on the whole not reasonably achievable and unsupported in law.

Conclusions

As can be seen, underlying the Rules is a real desire to keep matters out of Court. Historically, many of the complaints of litigants has been the onerous delays experienced when in “the system”. Cries that the “system is broken” have been heard many times. As a lawyer, the often quoted remark by William Gladstone rings true here, which is that “justice delayed, is justice denied”.

The reforms aim to address the pervasive issue of delay that has marked the Family Law jurisdiction. Personally, I have been in cases that were in the system for far too long without an outcome. For example, one parenting case I was involved in was adjourned for 18 months during the COVID-19 lockdowns. It shifted back and forth from the Federal Circuit Court to the Family Court with no real progress. A trial could not proceed due to COVID-19 and the Court’s need to technologically adapt. While there can be some leniency for the novel nature of a pandemic, it was nonetheless 18 months that my client went without making an advancement in seeing his son. 18 months of his son’s life, missed. In another matter, a complex and acrimonious high net worth property case, the matter chugged along the Federal Circuit and Family Court for 10 years…

While the real-life effects of the reforms are yet to be seen, the Rules make clear expectations of parties that Court is a last-option, not the default. Under the current framework, a party all-too-eager to litigate will face serious consequences which will only further delay their cause.

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