Before any action is taken in the Federal Circuit and Family Court, certain steps must usually be taken (called pre-action procedures), unless the matter is exempt or potentially exempt from this requirement. These steps are designed to ensure that reasonable attempts are made to resolve the matter without going to court.

Family dispute resolution required for all parenting order applications

Before bringing an application for parenting orders, both parties must attempt to resolve their dispute by family dispute resolution, unless an exception applies [Family Law Act 1975 (Cth) s 60I(8)]. See Coming to an agreement for more information.

Pre-action procedures

There are also pre-action procedures set out in the Federal Circuit and Family Court of Australia (Family Law) Rules 2021 (Cth) Sch 1. These need not be complied with where there is a risk of family violence, urgency, undue prejudice or there has been a previous application in the same cause of action in the last 12 months [r 4.01(3)].

At the time of filing an application to start a proceeding, each party must file a Genuine Steps Certificate outlining:

The pre-action procedures are set out in Schedule 1 to the Rules. They require the following (if it is safe to do so):

It is expected that a party will not start a proceeding by filing an application unless the proposed respondent does not respond to a notice of intention to start a proceeding, or if no agreement can be reached after a reasonable attempt to settle the matter by the required correspondence.

Schedule 1 also sets out that both parties must comply, as far as practicable, with the duty of disclosure set out in rule 6.01. This means that each party will disclose to the other all information that is relevant to the issues in dispute in a timely manner. Copies of relevant documents such as medical reports and school reports should be exchanged. Sub rule 6.05(2) lists relevant documents that must be disclosed in parenting proceedings.

Anyone who does not comply with these requirements (unless exempt under sub rule 4.01(2)) risks serious consequences, including costs penalties. Where there is unreasonable non-compliance, the court may order the non-complying party to pay all or part of the costs of the other party or parties in the case. The court may also take compliance or non-compliance into account when making orders about case management and may stay a proceedings pending compliance.

The court expects parties to take a sensible and responsible approach to pre-action procedures and parties must not use the pre-action procedure for an improper purpose (for example, to harass the other party or to cause unnecessary cost or delay). Parties must not raise in their correspondence irrelevant issues or issues that might cause the other party to adopt an entrenched, polarised or hostile position [see Schedule 1 to the Rules].

For more information, see the Court's brochure Before you file - pre-action procedure for parenting cases.