Most family law property disputes are meant to be resolved, or at least narrowed, before anyone files. The Family Law Rules make that a requirement: unless an exemption applies, each prospective party must take genuine steps to resolve the dispute, and must start disclosure, before a case begins.
This guide sets out the steps in Schedule 1, Part 1 of the Federal Circuit and Family Court of Australia (Family Law) Rules 2021 (as amended from 10 June 2025). It's general information for practitioners, not legal advice about any particular matter.
Who it applies to
The pre-action procedures apply to anyone considering starting a property case, anyone who would be a respondent, and their lawyers. Rule 4.01 brings them in, and if a case involves both property and parenting issues, both Parts of Schedule 1 apply.
Step 1: dispute resolution
So far as it is safe to do so, a prospective applicant must:
- give the other prospective parties a copy of the pre-action procedures (the court publishes a brochure for this)
- make inquiries about the dispute resolution services available
- invite the other parties to take part in dispute resolution, with a named person or organisation, or one to be agreed
Both parties must then cooperate to agree on a service and make a genuine effort to resolve the dispute through it. The court's brochure gives family counselling, negotiation, conciliation and arbitration as examples. If they reach agreement, they can formalise it with an Application for Consent Orders.
Step 2: the notice of intention to start a proceeding
If no suitable service is available, a party won't take part, or dispute resolution doesn't produce an agreement, the proposed applicant must write to the other party before filing. The notice must set out:
- the issues in dispute
- the orders that will be sought
- a genuine offer to resolve the issues
- a time to reply of at least 14 days after the date of the notice
The respondent must reply in writing within that time, saying whether the offer is accepted. If not, the reply sets out their issues, the orders they will seek and a genuine counter-offer, with at least 14 days for the applicant to respond. Filing is expected only if there's no response, or no agreement after a reasonable attempt to settle by correspondence.
Correspondence must not raise irrelevant or inflammatory issues, and the procedures can't be used to harass the other party or cause unnecessary cost or delay.
Step 3: disclosure starts now
The duty of full and frank disclosure applies while preparing for proceedings, not just once they've started (see the duty of disclosure guide). As soon as practicable, and while corresponding, the parties must exchange:
- a schedule of assets, income and liabilities
- a list of relevant documents in their possession or control
- copies of any listed document the other party asks for
The Financial Statement and rule 6.06 are the guide. The documents rule 6.06(7) treats as appropriate include:
- the three most recent tax returns and tax assessments
- superannuation information forms for each super interest
- for a self managed super fund, the trust deed and the three most recent financial statements
- the last four business activity statements, if the party has an ABN
- for a partnership, trust or private company the party has an interest in, its three most recent financial statements and last four business activity statements
Where a party can't produce a document, it's reasonable to ask them to sign an authority so it can be obtained from a third party. Documents disclosed at this stage can be used only for the dispute.
Step 4: the Genuine Steps Certificate
A Genuine Steps Certificate is filed with the Initiating Application and with any Response. It states either that the pre-action procedures were complied with, and the genuine steps taken, or the basis for an exemption. A party with a lawyer does this through the lawyer. The court's brochure adds that the reason for an exemption is explained in the supporting affidavit.
Exemptions
Rule 4.01(2) lists cases where the procedures don't apply, including divorce-only and child support cases, and cases where the court is satisfied it wasn't appropriate to comply. For a property case, circumstances the court considers include:
- allegations of family violence, or a risk of family violence
- urgency
- undue prejudice to the applicant if they had to comply
- an application in the same cause of action in the 12 months before the case started
Since 10 June 2025 the "not appropriate" ground is rule 4.01(2)(f), because a new paragraph (e) deals with some surrogacy cases. Older guides citing 4.01(2)(e) for it are out of date.
What happens if the steps are skipped
- The court can stay an application filed without compliance until the steps are taken (rule 4.04).
- Non-compliance can be taken into account on costs, including an order to pay all or part of the other party's costs.
- Costs orders can be sought against a lawyer involved in the failure.
What lawyers must do
As early as practicable, lawyers must advise clients about ways to resolve the dispute without going to court, the duty of disclosure, estimated costs and what affects costs orders. They must give clients the court's information about legal aid and dispute resolution services, and actively discourage ambit claims.
Running pre-action disclosure
The pre-action stage is where disclosure is cheapest to get right. Starting with an itemised list, tracking each document's status and keeping a record of what was exchanged and when makes the Genuine Steps Certificate easy to complete and hard to challenge.
Matter Folio lets a firm open a matter and request disclosure item by item before anything is filed, from both the client and the other side, with reminders, review and a register of everything exchanged. Our disclosure checklist is a good starting list.