When someone has separated from their spouse or de facto partner, they may make an appointment with their family lawyers assuming that the next stage in the process of formalising their divorce is to go to Family Court. Invariably, they will be told by their family lawyer that, rather than being the next stage, the court is likely to be the final stage in the process.

The days of the Family Court being the arena where all divorces are played out is long gone and this now tends to be the exception, rather than the rule. That occurs, firstly, because many couples can settle all divorce matters, including property and their children, amicably and through their family lawyers facilitating an agreement between them. All the Family Court then does is confirm the settlement is fair and grant the divorce.

Federal Circuit and Family Court Rules 2021

The second reason why the Family Court is not involved in the earlier stages of a divorce is Family Law and recent changes to it. In September 2021 new rules relating to divorce came into effect, namely the Federal Circuit and Family Court Rules 2021. These rules laid down principles that obligate separated couples to use all their efforts to try to negotiate an agreement before they seek intervention from the Family Court.

The term given to these new obligations is “Pre-Action Procedures” and they are not an option for couples to seek an agreement but are instead compulsory and must be followed before any court proceedings are allowed to be instigated. As such each of the parties must undertake the following steps:

#1 – Where appropriate and safe to do so, a) Provide the other party with a copy of the Pre-Action Procedures, b) Make enquiries regarding the available dispute resolution services, and c) Invite the other party to participate in any dispute resolution process.

#2 – Attend any dispute resolution meetings and make a genuine effort to make them work and thus resolve any disputes. If this succeeds and disputes are resolved at this stage, the parties can proceed to formalise their divorce, using the services of family lawyers if necessary.

#3 – If disputes cannot be resolved and no agreement can be reached, then Family Court proceedings can be instigated but only after the following notices have been sent by and to the respective parties:

i What issues are being disputed?

ii What orders are being sought from the Family Court?

iii What genuine offers were made to resolve any disputes?

iv A timescale for a response to be given by the other party which is not less than 14 days.

Even at this stage, the Family Court will expect to see evidence that every effort has been made to resolve any disputes, including in the interim period, before court proceedings commence.

If again, no resolution of the disputes relating to the couple’s divorce can be achieved, a “Genuine Steps Certificate” will need to be filed with the Family Court, outlining what disputes exist, what steps were taken to resolve them, and confirming that all the Pre-Action Procedures were followed and complied with.

Dispute Resolution Not Taking Place

It is important that divorcing couples are aware that the Family Court will expect to see real and genuine evidence that efforts to resolve their disputes were made. If it feels that no or little effort was made by either party, then it can dismiss their application and rub salt into the wound by making a costs order against the couple.

The only allowable exceptions would be circumstances where it is deemed dangerous for one of the parties to attend dispute resolution such as if their partner has been abusive to them in the past. Another is when the court proceedings need to be undertaken urgently and therefore time did not allow for the dispute resolution process to take place.