Before making an application to the Court to start a proceedings for property settlement, certain pre-action procedures must be complied with, unless an exemption to this requirement applies.

The pre-action procedures and exemptions are 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)].

Pre-action procedures

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

In parenting order applications, the applicant must also file a certificate by a family dispute resolution practitioner in accordance with section 60I(8), unless an exception applies under section 60I(9).

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. Sub rule 6.06(8) lists relevant documents that must be disclosed in property proceedings. The parties must exchange a schedule of assets, income and liabilities, a list of documents in their possession and control that are relevant to the dispute and any particular document requested from the list. The parties must also file a Financial Statement [r 6.06(5)].

Anyone who does not comply with these requirements (unless exempt under sub rule 4.01(2)(e)) 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 Courts' brochure Before you file - pre-action procedures for financial cases.