Since 2004, the Family Law Act 1975 has been amended on a number of occasions to give greater emphasis to the importance of parties resolving disputes, if possible before litigation is commenced.

The Family Law Rules 2004 commenced operation on 29 March 2004. The purpose of the Rules is “to ensure that each case is resolved in a just and timely manner at a cost to the parties and the court that is reasonable in the circumstances of the case”: r 1.04.

The Rules set out principles which apply to the parties and to their solicitors before and during proceedings before the Family Court of Australia.

Solicitors have a duty to comply with the pre-action procedures for parenting cases and for financial cases; and clients should be advised accordingly. Disclosure obligations are more onerous in the Family Court as compared to the Federal Circuit Court. Failure to comply with pre-action procedures and disclosure obligations can lead to delays at the first hearing date in Court and particularly in financial cases, costs orders may flow subject to the Judge’s discretion. In exceptional cases or urgency, sufficient evidence should be contained in the affidavit accompanying the initiating application to address any issues of non-compliance with the pre-action procedures and disclosure obligations.

In relation to parenting or children’s matters, Pt VII Subdiv E of the Family Law Act makes it compulsory, subject to certain limited exceptions, for parties to meet together and to confer with a family dispute resolution (FDR) practitioner before proceedings can be commenced. See Compulsory family dispute resolution. See also Sch 1 Pt 2 of the Family Law Rules 2004.

Applicants must file a section 60I certificate prepared by a family dispute resolution practitioner with the Initiating Application to start a parenting case in the Family Law Courts.

In relation to financial matters, parties and their solicitors must comply with the pre action procedures listed in Sch 1 Pt 1 of the Family Law Rules. See Pre-action requirements under the Family Law Rules.

Practice Tip: For cases before the Federal Circuit Court, r 24.04 sets out documents which must be served by each party on the other within 14 days of the first court date (other than for maintenance orders) and r 24.05 sets out documents which the respondent must bring to the court on the first court date for proceedings for maintenance only. Part 1 of sch 3 of the Federal Circuit Court Rules lists those Family Law Rules applied in family law proceedings before the Federal Circuit Court.

The Family Law Rules also provide that there may be serious consequences, including costs penalties, for non-compliance with these requirements: see rr 1.10 and 11.02(2). Costs orders can also be made against a lawyer by reason of the lawyer’s failure to comply with pre-action procedures: see r 19.10.

The rules which apply to pre-action procedures can vary between the Family Court, the Federal Circuit Court, and the Family Court of Western Australia. Care must be taken to ensure compliance with the Rules of the court in which proceedings are to be instituted.

The Family Court of Western Australia is regulated by the Family Law Rules 2004 but only as adopted and applied in Western Australia and also by the Case Management Guidelines (available on the Court’s website).

There are a number of dispute resolution processes available to parties to assist in the resolution of any dispute. Those processes include:

• Counselling;

• Mediation;

• Arbitration; and

• Collaborative Practice.

The role of the lawyer includes identifying and pursuing any dispute resolution process which might be of assistance to the parties. See Lawyer’s Obligations in sch 1 pt 1 of the Family Law Rules 2004.

Once an agreement is reached between the parties, the role of the lawyer is to advise their client on how to document that agreement to ensure that the terms of the agreement are comprehensive and that the client's interests are promoted and protected.

There are a number of options available to parties in which to document an agreement reached, including:

• parenting plans in respect of children (see Parenting plans);

• an Application for Consent Orders and terms of settlement (see Consent orders);

• financial agreements (limited and binding) (see Financial agreements generally); and

• child support agreements (see Child support agreements).

In some cases, one or more of the above options will be used to document the agreement. For example, an agreement may include:

• parenting care arrangements;

• property settlement;

• spousal maintenance; and/or

• child support.

An Application for Consent Orders may deal with the parenting and property settlement while the child support might be dealt with in the child support agreement and spousal maintenance in a financial agreement.