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What do you have to do before commencing Court proceedings for property division

Before an application for property division or parenting arrangements can be made in the Federal Circuit and Family Court of Australia there are a number of “pre-action procedures” that must first be considered.

The aim of the pre-action procedures is for parties to take genuine steps to explore the possibilities for resolution and, where a full resolution cannot be reached, to narrow the issues that require determination by the Court.

So what is required?  Parties are required to:

  1. Read the pre-action procedures;
  2. Comply with the duty of disclosure;
  3. Make inquiries about and invite the other party to participate in dispute resolution – such as family counselling, mediation, negotiation, conciliation or arbitration; and
  4. If dispute resolution is unsuccessful, write to the other party setting out what they are seeking.

Anyone who does not comply – unless exempt – risks consequences such as an order for costs being made against them.  A matter might be exempt if there are allegations of violence or if there is urgency (such as a child having been detained by one parent or risk of disposal of assets by one party).

The Court expects parties to comply with these pre-action procedures; indeed, if a party does commence proceedings they must file a Genuine Steps Certificate addressing these steps.

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