Publications

Family Law Courts have mandatory protocols that require parties to identify the issues in dispute and try and reach agreement before filing a Court application. Unless an exemption applies, a party seeking parenting or financial orders is required to engage with the “pre-action procedures.” The pre-action procedures refer to the mandated requirements under the Federal Circuit and Family Court of Australia (Family Law) Rules 2021 (“Family Law Rules”), under which parties must make a “genuine effort” to resolve their dispute before filing a contested Court application.

A party wanting to file a Court application must file a “Genuine Steps Certificate” to demonstrate that they have taken the necessary steps to attempt to reach an agreement away from the Court. If those steps have not been taken, and no exemption applies, the Court may refuse to accept the filing of a party’s application.

Schedule 1 of the Family Law Rules set out the objectives of the pre-action procedures which are as follows:

1. To encourage the parties to engage in the process of disclosure of any and all information and copy documents that may be relevant to the issues between them;
2. To provide the parties with a procedure to avoid going to Court;
3. To provide a procedure to quickly and cheaply resolve the matter;
4. Efficiency of the Court process;
5. To encourage parties to only seek orders that are necessary; and
6. To implement the overarching purpose of the Family Law Act which is to resolve disputes, in a just, quick and cheap manner.

Clients and their lawyers must focus attention on the following:

Your duty of disclosure

In family law matters, each party has a duty to provide full and frank disclosure of any and all information and documents that may be relevant to the determination of the issues between them before any negotiations can start.

Make inquiries with, cooperate with the other party to decide on an appropriate dispute resolution service, invite the other party to and participate in family dispute resolution

This involves inviting all relevant parties to attend dispute resolution in an attempt to resolve the dispute.

For parenting matters, this involves participating in family dispute resolution and/or obtaining a section 60I certificate confirming that the parties attended Family Dispute Resolution (“FDR”), or setting out why they did not/could not attend. Section 60I of the Family Law Act mandates that parties seek to attend, or attend FDR before applying for parenting Orders.

There are exceptions to obtaining a section 60I certificate listed under section 60I(9), as follows:

• The orders are sought with the consent of all parties;
• There has been or would be a risk of abuse of the child by one of the parties to the proceedings;
• There would be a risk of abuse of the child if there were to be a delay for applying for the order;
• There has been or is a risk of family violence by one of the parties to the proceedings;
• Where there are circumstances of urgency;
• Where one or more of the parties to the proceedings are unable to participate in family dispute resolution; or
• If your application relates to the contravention of an existing order made within the last 12 months and there are reasonable grounds to believe that the person has showed serious disregard for their obligations under the orders.

Offer of settlement

A party must make a genuine offer of settlement to resolve the issues in dispute.

Give a copy of the pre-action procedures to the other party.

A party must provide the other party with a copy of Schedule 1 of the Family Law Rules which set out these pre-action procedures.

Provide written notice of your intention to commence proceedings

If you have actioned the above and are not successful in progressing or resolving the matter, you must write to the other party and express your intention to commence proceedings in the Federal Circuit and Family Court of Australia. The notice of intention must set out the issues in dispute, orders to be sought in the court application, a genuine offer of settlement and a reasonable timeframe (not less than 14 days) for a response from the other party, or parties, to be provided. The notice of intention must also enclose the prescribed Court brochures.

Exceptions to the pre-action procedures

The exceptions when a party can skip the pre-action procedures and go straight to filing a Court application include matters where:

• There are allegations or a risk of child abuse or family violence;
• The application is urgent;
• A party would be unduly prejudiced;
• There is a previous application on foot within the last 12 months; or
• The parties have reached agreement and are filing an Application for Consent Orders.

There can be adverse consequences for parties who do not satisfy the above procedures. The Court may stay the application until the applicant complies with the procedures and the Court may consider the applicant’s failure or the respondent’s failure to comply when considering whether or not to make a costs order at the conclusion of a case, or potentially, before then.

The pre-action procedures are designed to provide parties with a set procedure and to encourage the matter to be resolved away from the Court.

If you or a friend or family member is in need of family law advice, please get in touch with our Family and Relationships Law Team.

This article was published on 1 July 2026 by Carroll & O’Dea Lawyers and is based on the relevant state of the law (legislation, regulations and case law) at that date for the jurisdiction in which it is published. Please note this article does not constitute legal advice. If you ever need legal advice or want to discuss a legal problem, please contact us to see if we can help. You can reach us on 1800 059 278 or via the Contact us page on our website. (www.codea.com.au).