Before you can file a court application in the Federal Circuit and Family Court of Australia (FCFCOA) for family law matters, strict pre-action procedures apply. These procedures are designed to ensure parties genuinely attempt to resolve disputes outside of court wherever possible.
The rules differ slightly between parenting matters and financial/property matters, but the underlying principle is the same: court should be a last resort, not a first step.
This article explains the pre-action requirements you must comply with, including mandatory mediation, exemptions, and the formal notice that must be given before commencing proceedings.
The Purpose of Pre-Action Procedures
The Family Law Act 1975 (Cth) and the Family Law Rules require parties to make genuine attempts to resolve disputes before filing an application in court. These obligations serve several purposes:
Encouraging settlement and negotiation at an early stage.
Reducing legal costs for families.
Narrowing the issues in dispute.
Promoting cooperation and child-focused outcomes in parenting cases.
Ensuring that only cases that truly need judicial determination come before the court.
Failing to comply with pre-action procedures can have serious consequences, including cost orders against the non-complying party.
Mediation Requirements in Parenting Matters
For parenting disputes, section 60I of the Family Law Act requires the parties to attempt family dispute resolution (FDR) before filing an application for parenting orders.
This means attending a mediation session with a registered Family Dispute Resolution Practitioner (FDRP). The aim is to help parents agree on arrangements for children without going to court.
If mediation is attempted but unsuccessful, or if a party refuses to attend, the FDRP may issue a section 60I certificate. This certificate must be filed with the court application and is evidence that the parties attempted pre-action dispute resolution.
Without this certificate (or an exemption, discussed below), the court will not accept a parenting application.
Exemptions from Parenting Mediation
There are circumstances where mediation is not required before filing in court. The main exemptions are:
Urgency – where the matter requires immediate court intervention (for example, risk of a child being removed from Australia).
Family violence or child abuse – where there is a history of, or risk of, family violence or child abuse and it is not appropriate to attempt mediation.
Incapacity – where a party cannot participate effectively in mediation due to incapacity (such as a severe mental illness).
Non-availability of services – if a FDR service is not available within a reasonable time (though this is rare in practice).
Other limited exceptions – such as where one party has already filed proceedings and the matter is before the court.
If you rely on an exemption, you must explain the basis for it in your application. The court will carefully scrutinise whether the exemption is valid.
Pre-Action Procedures in Property and Financial Matters
In property settlement and financial disputes, the pre-action requirements are slightly different. Parties are expected to:
Exchange disclosure – provide full and frank financial disclosure, including documents such as bank statements, tax returns, superannuation statements, valuations and payslips.
Explore negotiation and mediation – make a genuine effort to resolve the matter through direct negotiation, mediation, conciliation or arbitration.
Comply with the Pre-Action Procedures in Schedule 1 of the Family Law Rules – which require letters to be exchanged, offers of settlement made, and a focus on narrowing issues in dispute.
If these steps are not followed, the court may refuse to hear the application or make an adverse costs order.
The Notice of Intention to Commence Proceedings
If negotiation and mediation fail, the next step is serving a Notice of Intention to Commence Proceedings on the other party. This is a formal written notice required by the Family Law Rules before proceedings can be filed.
The notice must include:
The issues in dispute.
The orders you intend to seek.
A genuine offer to resolve the dispute.
A timeframe (at least 14 days) for the other party to respond.
A clear warning that if the dispute is not resolved, court proceedings will be commenced.
The aim is to give the other party a final chance to resolve the matter without litigation. A failure to respond reasonably to such a notice can have costs consequences once proceedings begin.
Other Considerations Before Filing in Court
Beyond mediation and formal notice requirements, there are several other important considerations:
Costs consequences – the court can order one party to pay the other’s legal costs if pre-action requirements were not complied with.
Confidentiality of negotiations – settlement discussions are generally privileged and cannot be used in court, except in limited circumstances (e.g. threats of harm).
Time limits – for property and financial matters, strict limitation periods apply. Applications must generally be filed within 12 months of divorce or 2 years of separation for de facto couples.
Urgency applications – even where pre-action procedures normally apply, if there is genuine urgency (e.g. risk of asset dissipation), the court may hear the matter without strict compliance.
Consequences of Non-Compliance
The FCFCOA takes pre-action compliance seriously. If you fail to comply, the court may:
Adjourn the case until the requirements are met.
Order you to pay the other party’s legal costs.
Take your conduct into account when making final orders.
The court’s expectation is that parties will only litigate if all other reasonable avenues have been exhausted.
Final Thoughts
Family law disputes are stressful, but the law requires parties to make genuine efforts to resolve them before resorting to the courts.
For parenting disputes, this usually means attempting mediation and obtaining a section 60I certificate, unless an exemption applies.
For property and financial disputes, it means full disclosure, negotiation, mediation, and the exchange of a Notice of Intention to Commence Proceedings.
The process is designed to save time, money and emotional strain, and to keep families – especially children – out of the courtroom wherever possible.
If you are not able to resolve or progress your family law negotiations, an experienced family lawyer can guide you on the steps necessary to progress matters as far as possible, without the court’s intervention. If it was necessary for you to initiate court proceedings it would be necessary for your to comply with the court’s requirements.
At Thornton + King our lawyers have decades of experience in family law. To speak to a Law Society Accredited Specialist in Family Law, give us a call or submit an enquiry now.
