On 1 September 2021, the Federal Circuit and Family Court of Australia (FCFCOA) commenced operation. A number of changes were introduced with the commencement of the integrated Court including a new case management pathway and a reform of the pre-action procedures. The new case management pathways and pre-action procedures put a greater emphasis on alternative dispute resolution before parties throughout parties’ family law matter including before litigation has commenced and throughout the course of the proceedings.
Previously, only litigants who were applying to the Court for parenting orders were required to show to the Court that they have made a genuine effort to resolve the dispute by attending family dispute resolution. If the dispute resolution was unsuccessful or was deemed inappropriate, parties are issued a Section 60I certificate which allows them to apply to make an application to the Court. However, prior to 1 September 2021, there was no such requirements for parties applying to the Court for financial orders.
However, as of 1 September 2021, there is now a requirement that a genuine steps certificate be filed with a parties’ Initiating Application and Response to Initiating Application in both parenting and property matters.
The genuine steps certificate outlines that the party has:
- Given a copy of the pre-action procedures to all other parties to the proceeding;
- Made inquiries about available dispute resolution services;
- Invited the other party to participate in dispute resolution;
- Participated in dispute resolution with the other party;
- Given the other party written notice of their intention to start proceedings;
- Cooperated with the other party to agree on an appropriate dispute resolution service;
- Exchanged copies of relevant documents with the other party
There is a list of exemptions as to why a party does not need to comply with the pre-action procedures. These exemptions include:
- there are allegations of child abuse or family violence or risk of child abuse or family violence; or
- the application is urgent; or
- the applicant or respondent would be unduly prejudiced if required to complete the pre-action procedures; or
- a previous family law application has been filed by one of the parties in the last 12 months
What happens if I don’t have an exemption and I file an Initiating Application or a Response without a genuine steps certificate?
There may be serious consequences for non‑compliance with the pre‑action procedures, including costs penalties or a stay of proceedings pending compliance.
To ensure that you have complied with the pre-action procedures and that have completed your Genuine Steps Certificate correctly, we recommend that you seek the assistance of an experienced family lawyer.
For assistance, please contact us on 02 4322 0251 or email us at [email protected].