When families are considering divorce, it is important that every effort is made to ensure the process is handled with cooperation and a genuine effort to resolve their financial and family matters prior to proceeding with Court assistance and action. In an effort to develop an avenue for resolving their disputes, spouses and partners are being directed to participate in taking genuine steps to resolve their differences prior to asking the Court to intervene.
This process was enacted by the Federal Circuit and Family Court of Australia (FCFCOA) in September 2021. The requirement that both parties engage in a form of mediation is now mandatory prior to requesting final and/or interlocutory orders from the Court.
To begin the process both parties are responsible for filing some initial paperwork. The person applying for the Certificate must complete parts A, B and D of the form and the respondent must complete parts A, C, and D of the form. Once the parties have completed their respective parts of the form they then must being the process of taking the pre-actions steps to complete the requirements that will generate a Genuine Steps Certificate.
But what constitutes taking the necessary pre-action steps to meet these requirements? The following steps are considered sufficient for receiving a Genuine Steps Certificate, which will then be presented to the Court as proof that the parties have engaged in a concerted effort to resolve their differences.
- Completing their necessary disclosure requirements by providing their financial information/assets both as a married couple and as individuals
- Giving their spouse/partner sufficient notice that they intend to enter into divorce proceedings
- Inviting the other party, and being willing to participate in, a process of mediation or another form of attempted resolution of the division of their marital assets
- Choosing a mutually agreeable dispute resolution service or engaging a mediator that both parties are comfortable working with
- Engaging in the mediation proceedings in a genuine and authentic manner so as to promote conflict resolution.
The process can include not only the party’s financial agreement for the dissolution of their assets, but parents can also use this mediation process to generate their parenting plan. This gives parents a great deal of flexibility to work together to create their own family plan for ongoing child care, including sharing the costs of raising their children and sharing time with their children.
While this is considered a very advantageous option, there can be times when the process cannot be completed, or reasons that might require the process to be waived and the parties exempt from compliance. First, if a party refuses to participate, the court can waive the filing of a Genuine Steps Certificate. In more dire circumstances the court can exempt a family from engaging in the pre-action steps. These situations can include;
- A history of abuse or violence between the spouses or toward children of the union
- An urgency to move forward including; a parent that is a flight risk or a parent who is terminally ill or some other circumstance that requires action to be taken with more immediacy
- If the filing of the Certificate could cause one of the parties to be unduly prejudiced
- If a family law application has already been filed by one of the parties in the past twelve (12) months
It is possible that there are other circumstances that could also generate a dispensation from filing a Genuine Steps Certificate, and if you believe you might be eligible for such a waiver, you should consult with a Solicitor who can help you make your case for a waiver from the requirement.
Since participation in securing a Genuine Steps Certificate is required of the majority of divorcing couples, it is important that both parties seek legal advice from a Solicitor who specialized in the area of family law.
In the event that you find yourself in need of assistance, please contact the law offices of Owen Hodge Lawyers. At Owen Hodge, we are always happy to assist clients in understanding the full ramifications of any and all of your legal needs. Please feel free to call us at your earliest convenience to schedule a consultation at 1800 780 770.