Pre-Action Procedures in Family Law: What You Need to Know Before Going to Court

Pre-Action Procedures in Family Law: What You Must Do Before Going to Court in Australia

Following a separation, many individuals are able to reach agreement about parenting arrangements, property division and financial matters without needing to involve the Court.

However, in some situations, an agreement cannot be reached and a formal application to the Federal Circuit and Family Court of Australia becomes necessary.

Before starting Court proceedings, parties are generally required to complete certain steps under the Court Rules. These steps are known as pre-action procedures.

The purpose of these requirements is to encourage early resolution and ensure that Court proceedings are a last resort rather than a first step.

What Are Pre-Action Procedures?

Unless a recognised exemption applies, parties intending to file an application must take specific steps before commencing proceedings. These include:

1. Providing Information to the Other Party

You must give the other party a copy of the Court’s pre-action procedures brochure and outline the applicable pre-action requirements.

2. Attempting Dispute Resolution

You are required to invite the other party to participate in an appropriate dispute resolution process, provided it is safe to do so.

If both parties agree, they must make a genuine attempt to resolve the issues through mediation or another recognised dispute resolution service.

3. Setting Out the Issues in Writing

If dispute resolution does not occur, is unsuccessful, or the other party refuses to participate, you must send written correspondence to the other party that:

• Clearly identifies the issues in dispute

• Specifies the orders you intend to seek if Court proceedings are commenced

• Makes a genuine proposal to resolve the matter

• Provides a reasonable timeframe (no less than 14 days) for a response

4. Disclosure Obligations

Each party must, as far as practicable, comply with their duty of disclosure. This generally involves exchanging relevant financial documents and other material necessary to properly understand the issues.

What Happens If You Do Not Comply?

Failure to follow the pre-action procedures — where no exemption applies — can have significant consequences.

The Court may:

• Order the non-compliant party to pay some or all of the other party’s legal costs;

• Take non-compliance into account when making procedural or substantive orders.

In some cases, the Court may:

• Excuse compliance or partial compliance;

• Dismiss part or all of an application;

• Set aside steps already taken;

• Proceed as though the matter is undefended; or

• Prevent a party from taking further steps until the pre-action requirements are satisfied.

Compliance is therefore not optional — it is an important procedural obligation.

When Are You Exempt?

There are circumstances where compliance with pre-action procedures is not required. Common exemptions include:

• Parenting matters involving allegations of child abuse, family violence, or risk of abuse or violence

• Financial matters involving allegations of family violence or risk of violence

• Urgent applications

• Situations where a party would suffer prejudice if required to comply

• Parenting matters where a party cannot effectively participate in dispute resolution (for example, due to incapacity or geographical remoteness)

• Where there has already been a family law application filed by one of the parties within the previous 12 months

• Matters involving bankruptcy jurisdiction under sections 35 or 35B of the Bankruptcy Act 1966

If you rely on an exemption, you must identify the applicable ground in your Genuine Steps Certificate when filing your Initiating Application or Response. You must also explain the basis for the exemption in your supporting Affidavit.

Are Pre-Action Procedures Helpful?

In many cases, these requirements are highly effective. They encourage parties to clearly define the issues, exchange relevant information, and engage in genuine negotiations. This often leads to earlier resolution and can save significant legal costs, time and emotional strain.

Court proceedings are typically expensive and stressful. If a fair outcome can be achieved without litigation, it is usually in everyone’s best interests.

That said, pre-action procedures can sometimes feel frustrating — particularly where one party is unwilling to negotiate reasonably. Even so, compliance is mandatory unless an exemption applies.

Frequently Asked Questions About Pre-Action Procedures in Family Law

Do I have to complete pre-action procedures before filing in the Family Court?

In most cases, yes. The Federal Circuit and Family Court of Australia requires parties to comply with pre-action procedures before filing an Initiating Application for parenting or property orders, unless a recognised exemption applies.

What happens if I do not comply with pre-action procedures?

Failure to comply may result in costs orders, dismissal of part of your application, or procedural delays. The Court may also take non-compliance into account when determining how the matter progresses.

Are pre-action procedures required in urgent cases?

No. If the matter is urgent — for example, where there is risk to a child or assets — the Court may grant an exemption from compliance.

Do pre-action procedures apply to parenting matters involving family violence?

Not necessarily. Allegations of family violence or child abuse may exempt a party from the requirement to attempt dispute resolution prior to filing.

How long do pre-action procedures take?

This depends on the circumstances, but generally parties must allow at least 14 days for written proposals to be considered before commencing proceedings.

Getting the Right Advice Early

Understanding your obligations before commencing Court proceedings is critical. Taking the correct steps at the outset can protect your position and avoid unnecessary costs or procedural setbacks.

If you are considering applying for parenting or financial orders, obtaining tailored legal advice early will help you navigate the process with clarity and confidence.

At Sarinas Legal, we provide strategic and commercially focused advice in all areas of family law, including parenting arrangements, property settlements and complex financial matters.

If you require tailored advice regarding your circumstances, we recommend obtaining independent legal guidance at an early stage to ensure your interests are properly protected.

Our experienced family law team can guide you through each stage — from negotiations and dispute resolution through to Court proceedings where necessary — and ensure your interests are properly protected.