What is a Genuine Steps Certificate?
A Genuine Steps Certificate is required by all parties involved in a family law dispute that is being taken through the Court system. This includes both parenting and property matters.
It necessitates each party to provide a certification that they have adhered to pre-action procedures and made an authentic effort to resolve (or at the very least narrow down) the contentious issues between them.
The Genuine Steps are outlined in clause 3(5) of Schedule 1 of the Family Law Rules.
These procedures cover the following key steps:
Participation in Dispute Resolution
Parties are obligated to engage in dispute resolution, which generally means (but is not limited to) participating in mediation. This can occur either with or without the assistance of a lawyer.
In cases related to parenting applications, it is essential to note that, unless specific exceptions apply, the applicant must submit a section 60i certificate.
This certificate serves as evidence that the applicant has made a bona fide attempt at family dispute resolution before initiating legal proceedings.
Exchange of Relevant Documents
Transparency is vital in resolving disputes. Therefore, parties are required to exchange pertinent documents.
For Property matters, this typically involves the sharing of financial information, including bank statements and tax returns.
This exchange of information aids in the comprehensive understanding of the financial aspects of the dispute.
Written Notice of Intent to Commence Proceedings
Prior to initiating legal action, parties must provide written notice to the other party, clearly outlining their intention to commence proceedings. This notice should contain the following essential components:
Specification of the Issues in Dispute
The notice must explicitly identify the specific issues that are in contention between the parties. This ensures that both parties have a clear understanding of the core matters under consideration.
Detailing the Orders Sought
The notice should articulate the specific legal orders that the party intends to pursue. Clarity in this regard is essential for a focused and effective resolution process.
Presentation of a Genuine Offer for Resolution
Parties are expected to extend a sincere offer aimed at resolving the issues under dispute. This offer should demonstrate a genuine willingness to find a mutually acceptable solution.
Establishing a Response Timeframe
The notice should include a defined timeframe within which the other party is expected to respond. This timeframe ensures that the resolution process progresses expeditiously.
When do you file the Genuine Steps Certificate?
Typically, the Genuine Steps Certificate is filed after parties have engaged in pre-action procedures, which involve various steps aimed at resolving the dispute without going to court.
The Genuine Steps Certificate must be submitted by an applicant while filing an Initiating Application. It is filed by a respondent when submitting a Response to an Initiating Application.
Are there any exemptions to filing the Genuine Steps Certificate?
In specific scenarios, there are situations where parties may not be obligated to adhere to the pre-action procedures necessary for obtaining a Genuine Steps Certificate.
Circumstances that might grant a party eligibility for such an exemption typically include:
- An urgent case (for example where one party poses a flight risk)
- Instances involving family violence or child abuse.
- The applicant facing undue prejudice or hardship if required to file a Genuine Steps Certificate.
- One of the parties having previously lodged a family law application with the court within the past 12 months.
If a party is already actively engaged in legal proceedings and seeks further interlocutory or procedural orders via an Application in a Proceeding, there is no need to file a separate Genuine Steps Certificate.
Instead, they should emphasise the genuine efforts they have undertaken to resolve the matter in their affidavit submitted to the court. This highlights their commitment to reaching a resolution within the existing legal framework.
What happens if you don’t comply with the ‘Genuine Steps’?
Failing to comply with the requirement to file a Genuine Steps Certificate when it is necessary can result in significant consequences.
These consequences can impact the progress of your legal case and even lead to unfavourable judgments.
Some potential repercussions of non-compliance with Genuine Steps include:
Delay in Proceedings
The court may delay or even halt proceedings until the certificate is filed. This can prolong the resolution of the dispute and increase legal costs.
Courts may order the non-compliant party to pay the legal costs of the other party. This can be a substantial financial burden.
Striking Out Claims or Defenses
In severe cases of non-compliance, the court may strike out a party’s claim or defence, essentially ending their case.
The court may draw adverse inferences against the non-compliant party, assuming they did not make a genuine effort to resolve the dispute.
All in all, it is evident that non-compliance with the ‘Genuine Steps’ requirement can impede the smooth acceptance of a matter into the Federal Circuit and Family Court of Australia (FCFOA).
How do you file the Genuine Steps Certificate?
To file a Genuine Steps Certificate electronically, you can utilise the Comcourts portal. The actual form can be found on the FCFOA’s website here.
For an applicant pursuing either final or interlocutory orders, the process involves completing Sections A, B, and D of the certificate form, which should then be filed alongside the initiation application.
On the other hand, a respondent seeking final or interlocutory orders must fill out Sections A, C, and D of the certificate form and submit it as part of their Response to Initiation Application.
What is the “notice of risk” form?
The Notice of Risk is a form that is completed for the Court to help in identifying potential risks to children right from the outset of a legal case.
In instances where allegations of risk are raised in the Notice of Risk, the Court may initiate referrals to child welfare authorities to address these concerns. Additionally, if there are no allegations to report, this is duly recorded at the commencement of the Court case.
It is important to note that a Notice of Risk can and should be submitted at any point during the Court proceedings if new allegations of risk emerge before the case concludes.
What is a “s60i certificate”?
An s60i certificate is provided by a certified Family Dispute Resolution (FDR) practitioner, documenting the efforts made by the involved parties to resolve their disputes before resorting to legal proceedings.
The certificate is named after Section 60i of the Family Law Act in Australia.
What are pre-action procedures?
Pre-action procedures encompass the actions that parties and their legal representatives can undertake to address contentious issues without the necessity of initiating legal proceedings.
In cases where the issues at hand remain unresolved, pre-action procedures can serve as a means to streamline and simplify the complex matters under dispute.
What is the pre-action procedures brochure?
This brochure offers guidance to individuals contemplating the submission of parenting order applications to the Federal Circuit and Family Court of Australia (referred to as the Court).
It contains essential details regarding the necessary pre-action procedures that must be followed before commencing a legal case.
The brochure can be downloaded here.
In summary, the Genuine Steps Certificate sets out a process for pre-action procedures, emphasising the importance of authentic efforts to resolve disputes.
These procedures encompass dispute resolution participation, document exchange, and the formalised communication of intent to commence legal proceedings.
By following these steps, parties contribute to a more efficient dispute resolution process.
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