I’ve just been served Court Papers for my Divorce, what now?

In some circumstances where your spouse seems to be ignoring your genuine attempts at property settlement, or you want a quick resolution to a financial settlement, Pre-action in the FCFCOA may be the answer.

For example, if one party is still in the former marital home, the other party may initiate pre-action in a serious attempt to get the house sold or for one party to buy the other out.

It can be quite intimidating to be ‘served’ legal documents but don’t stress out, it’s usually pretty standard stuff.  This does mean though, that you probably shouldn’t drag things out and shift to becoming more settlement focussed.

Anything listed in the Initiating Application is what the other party are seeking – not necessarily what they will get, so don’t get too worried about the details at this point.

If you haven’t already, engage in a Family Lawyer.

You will need to collate all the disclosure that the other party has requested.  If you haven’t got something, you need to advise the other party’s legal representative what it is you haven’t got, when you can get it to them – and if you can’t get it, why.

Once the disclosure is exchanged your Family Lawyer will be in a better position to assess the property pool and then discuss the settlement options with you and also what orders you should seek in your Response to Initiating Application.

Your lawyer will need to start drafting your Court documents and will also be sending a draft financial statement for you to complete.

Be clear about what your position is in terms of a settlement.  Did you want to get a Single Value Expert to value your house? Do you want to sell and split the proceeds? Do you want to try and buy your partner out, in which case, have you sought advice in relation to your refinancing capacity?

What is the FCFCOA?

The FCFCOA stands for the Federal Circuit and Family Court of Australia. It is also referred to as ‘the Court’.

It is a recent merger of the Family Court of Australia and the Federal Circuit Court, to both provide a simpler process for those with a family law matter going through the court process, and it was designed to be able to process family law matters quicker. In a move that some in the industry believe is long overdue, more Registrars, better processes and the like, were bought on and family law cases no longer take years to have their case heard.

What does a Pre-Action procedure for Financial Cases mean?

Pre-action procedures are steps that parties or their lawyers can take to resolve (or attempt to resolve) an issue involving a dispute (commonly about children, property or both children AND property), in a genuine attempt to solve the matter outside of court.

The goal is to explore possibilities for resolution. If resolution cannot be resolved, the aim for pre-action procedures is to narrow the issues that may require a court decision. This in turn should control costs and where possible, resolve disputes quickly and efficiently, therefore reducing the need to apply to a court.

“The Family Law Rules requires prospective parties to genuinely try to resolve their dispute before starting a proceeding in the Court.”

Forms of dispute resolution may be through family counselling, negotiation, conciliation, Mediation or arbitration.

For the purposes of this article, we are focussing on Financial Cases only (such as a demand to sell the former matrimonial home), Parenting Disputes are not expanded on here.

For more information, see Rule 4.01 and Schedule 1 of the Federal Circuit and Family Court of Australia (Family Law) Rule 2021 (Family Law Rules).

If you are considering applying to the Court for a Pre-Action procedure there are a few steps that will need to take place prior to lodging your case.

Not all applications for pre-action may be relevant for you

You may be exempt if:

• There are allegations or risk of family violence
• Applications that are urgent
• The applicant would be unduly prejudiced on order to comply
• There is a previous family law application filed within 12 months
• It’s an application for divorce only
• It’s a child support application or appeal, or
• It involves a court’s jurisdiction in bankruptcy.

What are the Benefits of Pre-action procedures?

• To encourage both parties to submit full and frank disclosure – such as pay slips, bank statements, tax statements, superannuation statements, and the like to help give a snapshot of the financial position of both parties.
• To help resolve issues quickly and fairly to avoid unnecessary and costly legal action.
• In situations where an agreement cannot be reached out of court, the pre-action procedure should help reduce the time and costs involved in the court proceeding.
• Keep parties focussed on only the realistic and reasonable based on the evidence.

Tips to ensure that your pre-action procedure goes smoothly

Keep everything clean and clear

• Just remember it’s a no-fault divorce in the eyes of the court.  We might want to tell our lawyer every grievance that we had with our soon-to-be ex – but all that will do is take up time (and money).

• Full & frank disclosure is exactly that. Submit your requested documents and statements that are relevant to the case, and do not try and hide anything. Remember it is an offence to intentionally hide or mislead the other party at this stage.

Do not get emotional or use emotive language

• This just causes hostility and may create inflammatory exchanges.
• Keep to facts – plain and simple
• Keep in mind the impact your written word (correspondence) could have on the other person. Is there another way to say it?

Identify issues early

• This helps to explore options for settlement at all stages
  Gather as much information/documentation early – some things may take time to obtain.

Keep things real

• Only seek orders that are realistic and reasonable for your case and your partner’s perspective – based on evidence and that are consistent with the current law.

Keep costs in proportion

• Remember the financial value of the subject matter of the dispute. You don’t want your costs to be disproportionately high in comparison.

Pre-actions cannot be used to knowingly cause unnecessary costs or delays or harass the other party in any way.

“The Court expects parties to take a sensible and responsible approach to pre-action procedures.”

How do I reply to a Notice of Intention to start a proceeding?

You must reply in writing. You need to state whether the offer is accepted and you need to do so within the nominated time.

If you don’t accept the offer that is proposed, you must set out in a letter:

• The issues in dispute
• The orders you will seek if a proceeding is started
• A genuine counter offer to resolve the issues, and
• A nominated time within which the initiating party must reply.

If you do agree then consider formalising your agreement by entering a financial agreement or filing an Application for Consent Orders.

What happens if we do need to go to Court?

In matters where the parties can’t reach a resolution then a proceeding takes place. The person considering applying to a court must give the other person written notice of the intention to start a proceeding (called a notice of intention). The Notice of Intention should include the issues in dispute, the orders to be sought, and a nominated time within which the other person must apply.

The Court will need to be satisfied that the pre-action procedures have been complied with and, if not, what the consequences should be (if any).

1. If the Court believes non-compliance to the pre-action procedure has occurred, they may order the non-complying party to pay all of part of the costs of the other party in the case, and/or
2. Take compliance (or non-compliance) into account when making orders about how your case will progress through the Court.

The court may also ensure that the complying party is in the same position if the other party had complied with the pre-action procedures.

What is non-compliance with pre-action procedures?

Examples of non-compliance procedures by the other party include:-

• Not sending a written notice of the proposed application to the other party
• Not providing sufficient information or documents to the other party
• Not following a procedure as required by the pre-action procedures
• Not responding appropriately within the nominated time to the written notice of proposed application, and
• Not responding appropriately within a reasonable time to any reasonable request for information, documents or other requirements of this procedure.

What happens if we agree at our dispute resolution service?

If each party has made a genuine effort to resolve the dispute by participating in a dispute resolution service and an agreement has been reached you can formalise it. There are two ways you can formalise the agreement, by either: –

• Entering into a financial agreement, with the assistance of a lawyer, or
• Applying to the Court for consent orders

We understand that this is one of the most gruelling periods of your life.  If you find yourself in a situation where you need to start an Initiating Application or Provide a Response to an Initiating Application, make an appointment with Sarah Bevan Family Lawyers today.  We will step you through what needs to be done in an efficient and thorough manner.